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THE -"( 3^ ,
CRIMINAL STATUTE LAW
DOMINION OF-CANADA,
RELATING TO INDICTABLE OFFENCES,
WITH FULL TEXT AS REVISED IX 1886, AND PUT INTO FORCE BY
ROYAL PROCLAMATION ON THE 1ST DAY OF MARCH, 1887,
Cases, Notes, Commentaries, Forms, etc, etc.
HENEI ELZEAE TASCHEEEAU,
One of the Judges of the Supreme Court of Canada.
SECOND EDITION,
REVISED, RE-ARRANGED AND ENLARGED.
<Torcmto :
CARS WELL & CO., LAW PUBLISHERS.
1888.
Entered according to Act of the Parliament of Canada, in
the year one thousand eight hundred and seventy-four,
by Henri Elzear Taschereau, in the office of the
Minister of Agriculture.
MONTREAL :
PRINTED BY JOHN LOVELL & SON.
1883.
PREFACE.
The passing into law, by Eoyal Proclamation, on the
1st day of March last, of the Revised Statutes of Canada,
has rendered necessary the publication of a new edition
of this work, adapting the references, notes, commen-
taries and forms contained in the previous edition to
each section they respectively apply to of the Criminal
Statutes as they now stand consolidated and revised.
The occasion could not be lost of bringing the collection
of the English Crown cases down to the latest possible
date, and this will be found to have been done, as
completely as the character of the book would permit,
down to the 1st day of January last.
To these have also been added a large number of
cases from all the Provinces of the Dominion, principally
selected, for obvious reasons, from those determined
since the Criminal Statute Law was made uniform
throughout the Dominion, in 1S69.
The profession may judge, by the number of these
additional references to the cases, of the extent of the
enlargement of the book in this respect alone. The first
edition contained 1984 references ; this one has 800
more: in all 2784.
Another most important addition to the work, and
one which, it is confidently believed, must greatly en-
hance its value, are Mr. Greaves' MSS. notes, on various
subjects, which the author, at different times, has been
IV PREFACE.
favored with, and which are now, for the first time,
published, with the eminent writer's kind permission.
These will be found scattered throughout the book under
the sections of the Statutes upon which they respectively
bear. Special attention is called, in this respect, to the
note on new trials and venire de novo, page 991, and to
the note on section 37 of the Offences against the person
Act, page 1081.
A number of statutes, with full text, notes and cases,
not comprised in the first edition, will also be found in
this one. It was at first intended to give it a still wider
scope, and to include, with notes, commentaries and the
cases relating thereto from England and all the Pro-
vinces of the Dominion, the penal clauses comprised in
the Customs Act, the Inland Revenue Act, the Indian
Act, the Government Railways Act, the Trade Marks Act,
the Postal Service Act, the Banks and Banking Act, the
Wrecks and Salvage Act, and various other federal acts,
throughout which are to be found enactments creat-
ing not only a large number of penalties recoverable
under the Summary Convictions Act, but, also, in many
instances, misdemeanors and felonies of a grave nature.
This would, however, have necessitated the publication
of the work in two volumes, and would have added so
much to its cost that, on the advice of the publishers,
this intention had to be abandoned.
Limited as must necessarily be, in Canada, the circu-
lation of any book on Criminal Law, it is obvious that,
for a volume on that class of statutory offences, it would
PREFACE.
be still more so, and consequently, altogether inadequate
to its cost. Should the Federal Government deem it
advisable to give any assistance towards defraying the
disbursements, the volume may be published separately.
The present one as it is may, it is hoped, be of some
use to the profession, and this will be a full reward
for the no small amount of labor necessarily bestowed
upon it.
To C. H. Masters, Esq., of the New Brunswick Bar,
Assistant Eeporter to the Supreme Court, I am
indebted for much valuable assistance, and for the
Index, Tables of Cases, Statutes, etc.
Ottawa, February 16, 1888.
11 Blandford Square,
March 7, 1878.
Bear Mr. Justice Taschereau,
I send you by book post my notes.
They have been throvm together at intervals, and are rudis et indigesta
moles, and far from what I would have wished; indeed, so much so,
that I have doubted about sending them; but, on the whole, feeling that
you will be kind enough to look with an indulgent eye upon the/n, I
think it better to send them, as they may suggest some points that have
not been apparently so fully considered as they deserve
I wrote these papers in order that they might as far as I could clear
up these questions, and you are perfectly at liberty to make any use of
them you may think fit ; and should you deem them worthy of a place
in your valuable work, I shall indeed deem it a very high honour in
everyway
C. S. Greaves.
VI PREFACE.
PREFACE TO THE FIRST VOLUME OF THE FIRST EDITION
(part.)
The following pages are hardly any thing else but a
compilation. They may, nevertheless, perhaps prove
useful
It has not been forgotten that
Longum iter est per praecepta,
Breve et efficax per exempla, — Seneca.
and the reported English Crown cases will be found
numerously cited The weight
of their authority and their practical importance, for the
Dominion of Canada, have been largely increased by the
enactment of the Criminal Law Consolidation Acts of
1869, based, as these are, on the Imperial Criminal Law
Consolidation Acts of 1861, and taken almost textually
from them.
At the end of each clause will be found cited the cor-
responding clause of the Imperial Statute, and any mate-
rial difference between both mentioned.
The annotations made by the learned Mr. Greaves,
Q.C., on " Lord Campbell's Acts,'' of 1851, and the Con-
solidated Acts of 1861, have been compiled and inserted
(under each section.) These annotations are rendered the
more valuable by the fact that these Statutes were framed
by Mr. Greaves who, it will be remembered, was said by a
high authority in England, in 1874, to be "the most
eminent living writer on the subject of Criminal Law."
PREFACE. Vll
PREFACE TO THE SECOND VOLUME OF THE FIEST EDITION
(part)
"11 Blandford Square,
"February 18, IS 75.
" Mr. Greaves presents his respectful compliments to Mr. Justice
Taschereau, and begs very cordially to thank him for his very valuable
present, and still more so for the very great attention and weight which
he has given to Mr. Greaves' notes and observations. It is, indeed, a
very great gratification to Mr. Greaves to think that he may have been
of some use towards the completion of the Canada Criminal Law. Mr.
Greaves has not been able to do more than cursorily look into the book;
but he has seen quite enough to satisfy him that it has been prepared
with great care and ability ; and he fully agrees with almost every remark
in it, and especially with the objections to the new Larceny and
Forgery clauses. On one point only, Mr. Greaves would crave to make
the enclosed reply.1'
Mr. Greaves' reply is reprinted at page 375 of this volume ("fol-
io wing the remarks it refers to.)
A TABLE OF REGNAL YEAES.
FOR CONVENIENCE OF REFERENCE TO THE ENGLISH STATUTES
AND LAW REPORTS.
Sovereigns.
William I
William II
Henry I
Stephen
Henry II
Richard I
John
Henry III
Edward I
Edward II ,
Edward III
Richard II
Henry IV
Henry V
Henry VI
Edward IV
Edward V
Richard III
Henry VII
Henry VIII
Edward VI
Mary
Philip and Mary
Elizabeth
Jame3 I
Charles I
The Commonwealth.
Charles II.*
James II
Commencement of Reign.
December 25, 1066...
September 26, 1087..
August 5, 1100
December 26, 1135 .
December 19, 1154...
September 3, 1189....
May 27, 1199
October 28, 1216
November 20, 1272...
July 8, 1307
January 25, 1327....,
June 22, 1377 ..
September 30, 1399 .
March 21. 1413
September 1, 1422...
March 4, 1461
April 9,1483
June 26, 1483
August 22, 1485
April 22, 1509
January 28, 1547
July 6, 1553
July 25, 1554
November 17, 1558.
March 24, 1603
March 27, 1625
January 30, 1649....
May 29, 1660
February 6, 1685 ....
Length
Reign.
21
13
36
19
35
10
18
57
35
20
51
23
14
10
39
23
3
24
38
7
2
4
45
23
24
11
37
4
•Although Charles II. did not ascend the throne until 29th May, 1660,
his regnal years were computed from the death of Charles I., January 13,
1649, so that the year of his restoration is styled the twelfth of bis reign.
table of regnal years. — [Continued.)
SOVEKEIGNS.
Commencement of Reign.
Length
Keign.
February 13, 1689 ...
14
March 8, 1702 ...
13
August 1, 1714
June 11, 1727
13
34
October 25, 1760
January 29, 1820 .
60
11
William IV
June 26, 1830
7
June 20. 1837
1831 1 & 2 Wm. IV.
1832 2&3 "
1833 3&4 "
1834 4&5 «
1835 5 & 6 "
1836 6&7 "
1837 7 Wm.IV. and 1 Vic.
1838 1 & 2 Vic.
1839 2&3 "
1840 3&4 "
1841 4&5 "
1841 5 "
1842 5&6 "
1843 6 & 7 "
1844 7&8 "
1845 8&9 "
1846 9& 10 "
1847 10 & 11 "
1848 11 & 12 "
1849 12 & 13 "
1850 13 & 14 "
1851 14 & 15 "
1852 15 & 16 "
1853 16 & 17 »«
1854 17 & 18 "
1855 18 & 19 "
1856 19&20 "
1857 20 "
1857 20 & 21 "
1858 21 & 22 "
1859 22 "
1859 22 &
1860 23 &
1861 24 &
1862 25 &
1863 26 &
1864 27 &
1865 28 &
1866 29 &
1667 30 &
1868 31 &
1869 32 &
1870 33 &
1871 34 &
1872 35 &
1873 36 &
1874 37 &
1875 38 &
1876 39 &
1877 40 &
1878 41 &
1879 42 &
1880 43 &
1881 44 &
1882 45 &
1883 46 &
1884 47 &
1885 48 &
1886 49 &
1887 50 &
1888 51 &
23
Vic
24
(i
25
<(
26
a
27
a
28
U
29
it
30
a
31
a
32
M
33
U
34
U
35
11
36
it
37
(I
38
a
39
u
40
tl
41
u
42
a
43
n
44
a
45
<i
46
n
47
a
48
n
49
a
50
K
51
a
52
u
TABLE OF STATUTES.
EXTRA-JUDICiAL OATHS.
R. S. C, c. 141.
PAGE
Section 1. Penalty for unlawfully administering oath 1
2. Act not to extend to certain oaths 1
3. Solemn declaration ma, be received 2
4. Who may take affidavits in insurance cases 2
Sch. Form of solemn declaration 2
ACCESSORIES ACT.
R. S. C, c. 145.
Section 1. Accessories before the fact may be dealt with as principals. 23
2. Jlay be indicted as such or as substantive felons 28
3. Principals in first and second degrees punished alike 28
4. Accessories after the fact may be indicted as such or as sub-
stantive felons 28
5. Punishment of accessories' after the fact 29
6. Prosecution of, alter conviction of principal 29
7. Trial of abettors in misdemeanor 29
8. And in offences on summaiy conviction 29
TREASON ACT.
R. S. C, c. 146.
Section 1. Compassing death of Sovereigu 30
2. Army officer or soldier corresponding with enemy 30
3. Compassing deposition of Sovereign and other uffence3 30
4. Conspiracy to intimidate legislative body 31
5. Procedure and evidence 31
6. Foreigner levying war in Canada to be tried by court mar-
tial „ 31
7. And British subject in company with foreigners, the like 31
8. Venue and punishment a3 to certain offenders 32
9. Statute 25 Ed. 3, c. 2, not affected by act 32
Xll TABLE OF STATUTES.
RIOT ACT.
R. S. C, c. 147.
Section 1. Riotous assembly may be dispersed by proclamation 33
2. Punishment for hindering reading of, or disobeying pro-
clamation 33
3. Apprehension of offenders in such case 33
4. Unlawful meetings for drill prohibited 34
5. Punishment of persons acting as instructors 34
6. And of persons receiving instruction 34
7. Meeting may be dispersed, and persons attending it ar-
rested 34
8. Time for prosecution under four preceding sections limited 35
9. Rioters demolishing churches, etc 35
10. Rioters injuring buildings, etc 35
11. Punishment for unlawful assembly 35
12. Punishment for rout 36
13. Punishment for riot 36
14. Punishment for affray 36
PERJURY ACT.
R. S. C, c 154.
Section 1. Punishment of perjury and subornation of perjury 41
2. What shall constitute perjury 41
3. Making false affidavit in one Province to be used in an-
other 41
4. Judge may direct prosecution for perjury committed before
him 42
5. All evidence material with respect to perjury 42
ESCAPES AND RESCUES.
R. S. C, c. 155.
Section 1. Felonious rescue 57
2. Escape or rescue from lawful custody 57
3. Escape while being conveyed to a penitentiary 57
4. Escape from a penitentiary while at work 57
5. Breaking out of a penitentiary 57
6. Rescuing prisoner from a penitentiary 57
7. Keepers allowing prisoner in penitentiary to escape 58
8. Unlawfully procuring discharge of prisoner 58
9. Escape from reformatory prison or school 58
10. Assisting, etc., in such escape 58
11. Punishment of escaped prisoners 58
TABLE OF STATUTES. Xlll
OFFENCES AGAINST RELIGION.
R. S. C, c. 156.
Section 1. Obstructing or assaulting a clergyman in the discharge of
his duties 64
2. Disturbing congregation met for religious worship 64
OFFENCES AGAINST PUBLIC MORALS.
R. S. C, c. 157.
Section 1. Punishment for 3odomy 66
2. Attempts 67
3. Seduction and unlawful intercourse with idiot, etc 68
4. Seduction under promise of marriage.. 69
5. Inducing resort for carnal illicit knowledge 69
6. Evidence, &c, on proceedings under the three last preced-
ing sections 69
7. Procuring defilement of girl and proceedings 70
8. Punishment of loose, idle or disorderly persons, or vagrants 71
OFFENCES IN RELATION TO MARRIAGE.
R. S. C, c. 161.
Section 1. Unlawfully solemnizing marriage, etc 75
2. Procuring feigned marriage, etc 75
3. Solemnizing marriage in violation of provincial law 75
4'. Bigamy 76
OFFENCES AGAINST THE PERSON.
R. S. C, c. 162.
Section 1. Interpretation "loaded arms" 141
2. Punishment of murder 141
3. Conspiracy to murder 141
4. Accessory after the fact to murder 142
5. Punishment of manslaughter 142
6. Excusable homicide 142
7. Petit treason 146
8. Poisoning, wounding, etc., with intent to murder 147
9. Destroying buildings, with like intent 152
10. Setting fire to ship with like intent 152
11. Attempting to poison, shoot, drown, &c, with like intent.. 152
12. Attempting murder by any other means 157
13. Attempts to maim, disfigure, &c 158
14. Inflicting grevious bodily harm 163
15. Attempts to choke, etc., in order to commit an offence 166
16. Using chloroform for like purpose 167
XIV TABLE OF STATUTES.
(Offences against the person — (Continued.)
17. Administering poison so as to endanger life 167
18. Administering poison with intent to injure 167
19. Ill-usage of apprentices, servants, &c 1G8
20. Exposing children 172
21. Causing bodily harm by explosives 174
22. Sending gunpowder, &c, with intent to do bodily harm ... 174
23. Placing explosive near a building or vessel 174
24. Setting spring-guns, &c 176
25. Placing things on railway to endanger passengers 177
26. Casting things at railway carriage toendanger passengers 178
27. Doing or omitting anything to endanger passengers 178
28. Injuries by furious driving 182
29. Leaving unguarded holes cut for purpose of obtaining ice. 182
30. Leaving unused mine or quarry unguarded 182
31. Second offence 183
32. If loss of life occurs offence to be manslaughter 183
33. Negligently causing bodily injury 183
34. Assault with intent to commit felony 184
**&5. Assault occasioning bodily harm 184
36. Common assault 184
37. Rape 197
38. Assault with intent to commit rape 197
39. Abusing a girl under ten 204
40. Abusing a girl between ten and twelve 205
41. Attempt to commit either of the last two offences 207
42. Abduction of woman from motives of lucre or by fraud.... 208
43. Forcible abduction 211
44. Abduction of a girl under sixteen 212
45. Child stealing 215
46. Kidnapping 216
47. Attempt to procure abortion 218
48. Procuring things to cause abortion 220
49. Concealing the birth of a child 221
LIBEL ACT.
R. S. C, c. 163.
Section 1. Publishing, &c, libel with intent to extort money 225
2. Publishing defamatory libel, knowing it to be false 225
3. Publishing any defamatory libel 225
4. Truth of defamatory matter a defence 225
5. Publication without authority of defendant a defence 225
6. Publication by order of legislative body 226
7. Proceedings in such case 226
8. Evidence in such case 226
TABLE OF STATUTES. XV
LARCENY ACT.
R. S. C, c. 164.
Section 1. Short Title 278
2. Interpretation 278
3. All larcenies of the same nature 281
4. Bailees guilty of larceny 2;1
5. Punishment of larceny 290
C. Larceny after conviction for felony 291
7. Stealing cattle 291
8. Killing cattle, &c, with intent to steal 293
9. Stealing domestic animals 293
10. Killing pigeons 294
11. Stealing oysters, <fec 294
12. Stealing valuable securities 29.5
13. Stealing deeds, &c 301
14. Stealing wills, Ac 302
15. Stealing records 302
10. Stealing railway tickets 305
IT. Stealing fixtures 305
18. Stealing trees in parks, &c 307
19. Stealing " elsewhere 308
20. Receiving stolen trees 310
21. Stealing fences 310
22. Possession of stolen wood 310
23. Stealing fruit in gardens, Ac 311
24. Stealing vegetables elsewhere ~. 312
25. Stealing from mines 312
26. Fraudulently removing ore in mines 313
27. Fraudulently concealing royalty 314
28. Selling or purchasing quartz, Ac, without authority- 314
29. Purchasing gold in quartz, &c, without giving proper
receipt 314
30. Possession of smelted gold, etc., prima facie evidence that
same has been stolen 314
31. Defrauding partners, etc., in mine 314
32. Robbery 315
33. Assault with intent to rob 315
34. Robbery with violence, etc 331
35. Sacrilege 349
36. What is part of a house 351
37. Burglary 351
38. Punishment of burglary 351
39. Entering house by night with intent, etc 356
40. Breaking into, etc., building within curtilage 358
2
XVI TABLE OF STATUTES.
Larceny Act — {Continued.)
41. Housebreaking, etc 361
42 Housebreaking with intent, etc 365
43. Being armed by night with intent, etc 367
44. Being armed after previous conviction 367
45. Larceny in the house 371
46. Larceny with menaces 374
47. Stealing goods in process of manufacture 378
48. Stealing goods intrusted for manufacture 379
49. Stealing from ships, etc 379
50. Stealing properly under seizure 381
51. Larceny by clerks and servants 381
52. Embezzlement by clerks and servants 383
53. Larceny by persons in the Queen's service 401
54. Embezzlement by persons in the Queen's service 401
55. Refusal to deliver up public books, etc 402
56. Stealing election documents 403
57. Stealing by tenants and lodgers 404
58. Stealing by partners 405
59. Embezzb ment by bank officer 407
60. Agents, banker , etc., embezzling property 407
61. Bankers fraudulently selling property 409
62. Fraudulently selling property under power of attorney.... 409
63. Factors fraudulently obtaining advances 410
64. Definition of terms relating to factors 410
65. Trustees fraudulently disposing of property 411
66. Directors fraudulently disposing of property 412
67. Directors keeping fraudulent accounts 412
68. Directors wilfully destroying books 41 2
69. Directors publishing fraudulent statements 412
70. Embezzlement by officers, etc., of unincorporated societies. 412
71. All questions must be answered, etc 413
72. No civil remedy affected 413
73. Keepers of warehouses, etc., giving false receipts 413
74. Owners selling after advance by consignees 414
75. Making false statements in receipts for grain, etc 415
76. As to partners 415
77. False pretences 420
78. Inducing persons by fraud to execute deeds 440
79. Pretending to have inclosed money, etc., in post letter.... 440
80. AVinning money by cheating at games 442
81. Obtaining passage in steHmers, etc., by false tickets 443
82. Feloniously receiving stolen property 443
83. Receiving in misdemeanors 444
84. Receivers in summary offences 444
1
TABLE OF STATUTES. XV11
Larcexy Act — (Continued.)
85. Fraudulently depriving another of the use cf his property. 452
86. Punishment in such ease where property is worth over
$200 457
87. Appropriating timber, etc., found adrift 457
88. Bringing stolen property into Canada 458
89. Taking reward for recovery of stolen property 459
90. Advertising a rewa . 1 for 460
91. Concealment of deeds, etc 460
92. Provisions applying only to Quebec 461
93. Fraudulent sale of properly ~ 461
94. Fraudulent hypothecation of property 461
95. Seizing township lands under execution against private
person 461
96. Provisions applying only to British Columbia 462
97. False statements, etc., in transactions relating to land 462
98. Injuring, etc., anything on Indian grave 462
FORGERY ACT.
R. S. C, c. 165.
Section 1. Interpretation 488
2. Possession, what 488
3. What shall be deemed forgery 488
4. Forging great seal, etc 489
5. Forging document with signature of Governor, etc 490
6. Forging letters patent 490
7. Forging public registers 490
8. Forging transfer of stock, etc 41 1
9. Personating owner of stock 493
10. Forging powers of attorney 494
11. Making false entries in bankbooks 494
12. Clerks making out false dividend warrants 495
13. Forging debentures, etc 497
14. Making plates for debentures, etc 497
15. Making paper for debentures, etc 498
16. Possession of such paper, etc 498
17. Forging stamps, etc 499
18. Forging bank nutes 503
19. Receiving, etc., forged bank notes 505
20. Having moulds with words used for Dominion notes, etc.,
on them 506
21. Proviso as to bills of exchange 506
22. Engraving plates for making bank notes 507
23. Engraving words, etc., on plates 507
XV111 TABLE OF STATUTES.
Forgery Act — (Continued.)
24. Having moulds with bankers names, etc 508
25. Forging or engraving plates for foreign bills 508
26. Forging deeds, etc 510
27. Forging wills 511
28. Forging bills of exchange, etc 512
29. Forging orders, receipts, etc 517
30. Drawing bills " per procuration " . ..... 521
31. Obliterating crossings on cheques 523
32. Forging debentures » 523
33 Forging railway tickets ., 523
34. Forging proceedings of courts 523
35. Uttering false copies, etc., of records 524
36. Forging instrun ents of evidence 524
37. Uttering forged proclamation, etc 524
38. Forging registry of deeds 525
39. Forging orders, etc., of justices 526
40. Forging name of judge, etc 526
41. Falsely acknowledging bail 527
42. Forging marriage license 527
43. Forging or altering registers of births, etc 527
44 Forging, etc., certified copies of register , 528
45. Demanding property on forged it struments 530
46. Forging any document 531
47. Forging documents in law bills, etc 531
48. Forging instruments made out of Canada 532
49. Or payable out of Canada 532
50. Forgeries punishable more severely than under this act.... 534
COIN ACT.
R. S. C, c. 167.
Section 1. Interpretation 535
2. Possession, what is 536
3. Counterfeiting current gold or silver coin 537
4. Coloring coin 539
5. Impairing coin 541
6. Unlawful possession of filings, etc 541
7. Buying, etc., counterfeit coin 542
8. Importing counterfeiting coin 543
9. Exporting 543
10. Uttering counterfeit coin 544
11. Passing light coin ; 544
12. Having same in possession £44
13. Offence under three last sections after previous conviction. 547
TABLE OF STATUTES. XIX
Coix Act — (Continued')
14. Uttering foreign coin, etc 548
15. Counterfeiting, etc., copper coin 548
16. Uttering base copper coin 549
17. Defacing coin by stamping 549
18. Uttering coin so defaced 549
19. Counterfeiting foreign gold and silver coin 549
20. Bringing same into Canada 549
21. Penalty for uttering 550
22. Having in possession 550
23. Counterfeiting other foreign coin 550
24. Making, etc., coining tools 551
25. Unlawfully conveying tools, etc., out of mint 555
2(3. Cutting, etc., counterfeit coin 555
27. When offence deemed complete 556
29. Unlawful manufacture, etc., of copper coin 556
29. Seizure of such coin 556
30. Enforcing penalty , 557
31. Recovery irom the owner in certain cases 557
32. Officers of customs may seize counterfeit coin 557
33. Uttering unlawful copper coin 557
34. Application of penalties 557
MALICIOUS INJURIES ACT.
R. S. C, c. 168.
Section 1. Interpretation 558
2. Setting fire to church, etc 558
3. Setting fire to dwelling house, any person being therein... 561
4. Setting fire to house, etc 562
5. Setting fire to railway station, etc 565
6. Setting fire to Her .Majesty's docks, etc 566
7. S tting tire to any public building 566
8. Setting fire to other buildings 567
9. Setting fire to contents of buildings 568
10. Attempting to set on fire 570
11. Setting fire by negligence to forest, etc 571
12. The like, maliciously .* 571
13. Destroying house with gunpowder, etc 572
14. Attempting same 572
15. Injuries to buildings by tenants.....' 574
16. Destroying goods in process of manufacture 575
17. Destroying machinery 576
18. Setting tire to crops of hay, etc 578
19. Setting fire to stacks of corn, etc 578
XX TABLE OF STATUTES.
Malicious Injuries Act — {Continued)
20. Attempt in such case 578
21. Destroying hop-binds, etc 579
22. Destroying trees in park, etc 580
23. Destroying trees elsewhere 580
24. Damaging trees 582
25. Destroying fruit, etc., in garden 583
26. Destroying vegetables growing elsewhere 584
27. Destroying fences 584
28. Setting fire to coal-mine 585
29. Attempt 585
30. Conveying water, etc., into mine 586
31. Damaging machinery in mine 586
32. Destroying sea-bank, etc 588
33. Removing piles in sea-bank, etc 588
34. Damaging fish-pond, etc 589
35. Injuring public bridge, etc 590
36. Destroying turnpike gate, etc 591
37. Damages to railway 591
38. Obstructing use of railway ... £92
39. The like by wilful omission or neglect 592
40. Injuries to telegraph, etc 592
41. Attempt 593
42. Injuries to works of Art 596
43. Killing or maiming cattle 597
44. Attempting to poison, etc., cattle 597
45. Killing or maiming other animals 599
46. Setting fire, etc., to ship 600
47. The like with intent to prejudice owners, etc 600
48. Attempting to commit such offences 600
49. Placing gunpowder near a ship with intent... 604
50. Damaging ships otherwise 604
51. Exhibiting false signals, etc 604
52. Injuring, etc., lighthouses, buoys, etc 605
53. Fastening vessels to buoys, etc 606
54. Cutting booms, etc., adrift 606
55. Injuries to poll-books, eic 606
56. Defacing, etc., land ma^-ks of Province 607
57. And of concession, etc 607
58. Damnges not otherwise provided for exceeding $'20 607
59. The same notexceeding $20 609
60. Malice against owner not necessary 611
61. Act to apply to persons in possession of property injured.. 611
TABLE OF STATUTES. XXI
THREATS ACT
R. S. C, c. 173.
Section 1. Letters demanding money, etc., with menaces 613
2. Demanding money, etc., with menaces 615
3. Letters threatening to accuse of crime 617
4. Accusing, etc.. of crime 619
5. Inducing person to execute deeds, etc., by violence 621
6. Immaterial by whom menaces are to be executed 622
7. Letters threatening to murder
8. Letters threatening to burn, etc., houses 625
9. Assault arising from combination 625
10. Assault with intent to obstruct sale of grain 627
11. Assaults on spamen, etc 627
12. Certain acts contrary to free action. 627
13. Trade combination defined 628
14. Preventing bidding for public lands 629
15. Breach of contract endangering life, etc 629
16. Breach of contract by a corporation 630
17. Breach of contract by a railway company 630
18. Malice n^ed not be against a particular individual 630
19. Corporations to keep provisions posted up 630
20. Making gift, etc., for influence respecting a government
contract 631
21. Making gift, etc., to tenderer for contract 631
22. Public officers receiving gifts, etc., for assistance in such
contracts 632
23. Offenders disqualified 632
24. Time for prosecution limited 6^2
25. Violation of statute 632
26. Fraud or cheating 632
27. Destroying books, etc, to defraud creditors 638
28. Transferring property to defraud creditors 638
29. Misconduct of sheriffs, etc 638
30. Embracery 638
31. Discontinuing qui lam actions C38
PROCEDURE ACT.
R. S. C, c. 174.
Section 1. Short title G40
2. Interpretation 640
3. Powers of Superior Court 641
4. Courts not to try certain offences 641
5. Justices, etc., not to try certain offences by explosives 646
6. Sessions not to try certain offences under Larceny Act.... 646
XX11 TABLE OF STATUTES.
Procedure Act — (Continued.)
7. Certain magistrates may act alone 646
8. Offences within jurisdiction of the Admiralty 646
9. Death in Canada from hurt received abroad, and vice
versd 646
10. Offences committed on confines of districts, etc 652
11. Offences committed on persons or property in transit 653
12. Offences on highways, etc., dividing two districts 653
13. Place of trial after dissolution of union of counties 654
14. Place of offences in provisional districts 655
15. Commitment and trial in Gaspe 656
16. Venue in certain offences 656
17. Place of trial of accessories 657
18. Place of trial for forgery offences 657
19. Place of trial for offences by kidnapping 658
20. Place of trial for receiving stolen goods 658
21. Place of trial for bringing stolen property into Canada... 659
22. Place of trial for having property in one part of Canada
stolen in another 662
23. Uttering counterfeit coin, etc., in more places than one... 663
24. Apprehension without warrant by officer in certain cases.. 664
25. And by any person in certain other cases 664
26. Apprehension by person to whom property is offered for
sale 664
27. Apprehension of offenders caught in the act in the night
time 664
28. Apprehension in other cases without warrant 665
29. Apprehension of person committing coinage offence 665
30. Warrant against person charged with offence 678
31. Or summons 678
32. Indictable offences on the high seas 678
33. Warrant against person indicted by grand jury 679
34. Commitment or bail in such case 679
35. Proceedings when person indicted is in custody 679
36. Bench warrants not prevented 679
37. Warrant may be issued on Sunday, etc 679
38. If warrant to be issued information to be upon oath 680
39. And also in ca3e of summons unless otherwise provided. 680
40. Nature of summons 680
41. Service of summons 680
42. Proof of service 680
43. Warrant for not obeying summons 680
44. What warrant shall contain 681
45. Seal of Justice 681
TABLE OF STATUTES. XX111
Procedure Act — {Continued)
46. Warrant in force until executed 681
47. Execution of warrant 681
48. Who may execute 681
49. Backing warrants 682
50. Proceedings after arrest 682
51. Search warrants in certain cases 682
52. And in certain other cases 683
53. Search warrant for gold, silver, quartz, etc 683
54. Search for timber, etc 683
55. Search for forged notes, etc 684
56. Counterfeit coin, etc., may be seized 684
57. Place of preliminary examination not an open court 685
58. No objection for defects 685
59. Adjournment in case of variance 686
60. Summoning witnesses 686
61. Warrant for disobedience 686
62. Warrant in first instance 686
63. Commitment of witness for contempt 686
64. Remand of accused 687
65. Verbal remand for three days 687
66. Hearing before expiration of demand 687
67. Admission to bail on demand 687
68. Forfeiting recognizance 687
69. Examination to be in presence of accused 688
70. Depositions to be read to accused 688
71. Explanations to be made to the accused 688
72. Not to prevent giving confession in evidence 689
73. Proceedings on conclusion of evidence 689
74. Accused entitled to copy of depositions 689
75. Recognizances to prosecute, etc 690
TO. To be subscribed by justice 690
77. To be transmitted to Court 690
78. Commitment for refusing to give recognizance 690
79. Release on discbarge of accused _ 690
80. Preliminary proceedings in certain offences 691
81. Bail for felony not capital 691
82. Bail by judge of Superior or County Court 692
83. Bail for treason or capital felony 692
84. Warrant of deliverance 692
85 C on veyance of prisoners to gaol 692
86. Person apprehen led in one division for offence committed
in another, proceedings 693
87. Transmission of evidence in such case 693
88. Expenses of conveyance 693
XXIV TABLE OF STATUTES.
Procedure Act — {Continued.)
89. Receipt to constable for accused 604
90. Payment of charges for conveyance 694
91. Recognizances void in certain cases 694
92. Duty of coroner in case of murder, etc 694
93. Bail in such case 695
94. Order on admission to bail 695
95. Penalty for contravention 695
96. Provisions to apply to all justices, etc 695
97. Removal of prisoners from insecure gaol 695
98. Direction to sheriff 696
99. Removal for trial 696
100. Removal after sentence ... 696
101. Arraignment of indicted prisoner 696
102. Change of venue 697
103. Indictment need not be on parchment 708
104. Venue in margin sufficient.. 708
105. Abolition of benefit of clergy 712
106. Several act1? of treason may be charged 725
107. Form of indictment for perjury 725
108. And for subornati m of perj lry 726
109. Form of indictment for murder, etc 726
110. Form of stealing, etc., document of title to lands 727
111. Distinct act of embezzlement may be charged 727
112. Form of indictment for obtaining property by false pre-
tences 727
113. Intent to defraud need not be stated 728
114. Form of indictment for forgery 728
115. Form of indictment for buying, etc., counterfeit coin 729
116. Form of indictment for malicious injury to property 730
117. When ownership of property need not be alleged 730
118. Ownership of partnership property how laid 731
119. Partners, etc., how described 731
120. Property in roads, etc, bow laid 734
121. Ownership of property in possession of public officers,
how laid 735
122. Property of bo"iy corporate 735
123. Venue in indictment for stealing oysters 736
124. In indictment for stealing minerals, property in whom
laid 736
125. Stealing postage stamps, the like 737
126. Embezzlement by persons in the public service the like... 737
127. Form of indictment for stealing by lodgers 737
128. Omission of certain averments, etc., not fatal 738
129. Money or bank notes, how described 747
TABLE OF STATUTES. XXV
Procedure Act — (Continued)
130. Description of instruments generally 748
131. Description of forged instrument "49
132. Description of unlawful engraving
133. Joinder of accessories 750
134. Joinder of offences in larceny 750
135. Joinder of offences of stealing and receiving 751
136. Indictment of receiver 752
137. Indictment in misdemeanor 752
138. Indictment in joinder of offenders 753
139. Indictment after previous conviction 753
140. Preliminary requirements as to certain indictments 767
141. Postponing trial 771
142. Effect of plea in abatement 776
143. Objection to indictment 778
144. Effect of pl«a of " not guilty " 787
145. Entering plea for defendant 788
146. Autrefois convict or acquit 791
147. Plea of attainder 803
143. Plea in case of libel 227
149. Special plea 227
150. Effect of plea of justification 227
151. Plea of not guilty in addition 227
152. Proceedings on indictment for libel 227
153. Cost3 in private prosecution for libel 22$
154. Recovery of such costs 223
155. Appearance of corporation incicted S04
156. Certiorari not required, etc 805
157. Notice to corporation of indictment 805
158. Proceedings on default 805
159. Ex parte trial in such case 805
160. Qualification of jurors 805
161. Juries de medietate linguae „. ,,.. 806
162. Quaker, etc., sworn as a juror 806
163. Peremptory challenge by prisoner 807
164. Challenges by the Crown 818
165. Jurors stood aside in case of libel 818
16'j. Mixed juries in Quebec 823
167. Mired juries in Manitoba 826
168. Talesmen 826
169. Jury may separate 827
170. Saving of powers of Court 831
171. View by jury 832
172. Duties of sheriffs on view 832
173. Swearing witnesses before grand jury 832
XXVI TABLE OF STATUTES.
Procedure Act — {Continued.)
174. Examination of such witness 833
175. Name of witness to be endorsed on bill 833
176. Who may be examined 833
177. As to fees in such case 833
178. Full defence allowed 835
179. Address of counsel 835
180. Inspection of depositions by prisoners 853
181. Copy of indictment to prisoners 853
182. And of depositions 853
183. Verdict of attempt on trial for committing offence 854
184. Prisoner in misdemeanor not acquitted when facts in evi-
dence prove felony 862
185. No liability for attempt after trial for commission 863
186. Indictment for felony valid though facts amount to
treason 864
187. No inquiry concerning lands 864
188. Conviction for concealment of birth on trial foi child
murder 865
189. Conviction for causing grevious bodily harm on trial for
felony 866
190. Conviction of misdemeanor on trial for felony by
poisoning 868
191. Verdict of assault in cases of felony including assault 868
192. Conviction of assault on trial for robbery 882
193. Conviction of house-breaking on trial forburglary 883
194. Proof of burglary not a defeuce on charge of house-
breaking 883
195. On trial for embezzlement conviction may be of larceny,
and vice versd 884
196. No acquittal of obtaining by false pretences because
offence amounts to larceny 885
197. The like in cases of frauds by agents, of 886
198. Conviction of obtaining by false pretences on trial for
larceny 886
199. When indictment for stealing contains a count for re-
ceiving 886
200. Conviction on indictment for jointly receiving 888
201. Conviction of fraudulent appropriation on trial for
larceny 888
202. Three takings may be proved on one charge 888
203. Evidence of former possession of other stolen goods in
cases of receiving 891
204. And of previous conviction of fraud, etc., in such cases... 892
205. Differences in date, etc., of true and false coin, not ground
for acquittal 535
TABLE OF STATUTES. XXV11
Procedure Act — (Continued.)
206. On trial for destroying buildings, conviction may be of
injuring 37
207. Proof of previous conviction 892
208. Impounding documents 893
209. Destroying counterfeit coin 893
210. Attendance of witnesses 894
211. Arrest for non-attendance 894
212. Witnesses in Canada but without jurisdiction of court... 894
213. "Witnesses in penitentiary, etc 895
214. No incapacity from crime or interest 896
215. Interest in question, etc., not to disqualify 896
216. When defendant, etc., competent witness 899
217. In other cases not 899
218. Corroborative evidence necessary in forgery cases 900
219. Quaker, etc., sworn as a witness 901
220. Evidence of persons ill 901
221. Presence of prisoner at taking 902
222. Use of depositions in such case 902
223. Evidence of statement of accused 906
224. Use of depositions taken on preliminary investigation..... 906
225. Proof of trial at which perjury was committed 906
226. Evidence of carnal knowledge 907
227. Evidence at trial for child murder 907
228. Evidence of ownership of timber 908
229. Evidence of coin being false, etc 908
230 Proof of previous conviction 908
231. Proof of previous conviction of a witness „ 909
232. When attestation need not be proved 912
233. Proof of handwriting _ 913
234. Discrediting witness 913
235. Cross-examination as to previous statements in writing... 914
236. Proof of contradictory statements by witness 915
237. Variances how corrected 916
238. Amendment of indictment 017
2;:9. Trial after amendment 917
840. Amending order to be recorded 917
241. Second trial 918
242. Verdict, etc., valid after amendment 918
243. Record in such case 918
244. Record of conviction or acquittal 940
245. Certain defects not fatal 945
246. Certain defects not to stay or reverse judgment after ver-
dict 946
247. Verdict not to be impeached for certain omissions as to
jurors 956
XXV1U TABLE OF STATUTES.
Procedure Act — {Continued.)
248. Costs on conviction for assault 956
249. How recovered 957
250. Restitution of stolen property 957
251. Restitution of money taken from prisoner 961
252. Acquittal for insanity 962
253. Order for safe custody in such case 962
254. Likeorder in certain other cases 962
255. Proceedings when prisoner found insane at trial 962
256. And in case of prisoner about to be discharged 903
257. Orders for safe custody in such cases 963
258. Removal, etc., of insane prisoner 963
259. Question may be reserved 965
260. Judge to state a case 966
261. Proceedings in Oourt of Crown cases reserved 966
262. How judgment shall be certified 966
263. Delivery of judgment 967
264. Case may be sent back 967
265. Writs of error 972
266. On what founded 972
267. Proceedings in Court of Error 973
268. New trials , 978
26S'. Judge, etc , in Ontario may reserve decision 1023
270. Procedure in High Court of Justice 1024
271. Holding assizes 1024
272. Gaol delivery 1024
273. Defence in criminal trial in High Court of Justice 1024
274. Defendant may be required to plead forthwith lo24
275. Provision if defendant is not brought to trial witbin
twelve months 1025
276. Calendar of criminal cases for graudjury in N.S 1025
277. When sentence may be pronounced in N.S 1025
278. Forms in schedule to be sufficient 1025
279. Army and navy laws not affected 1026
Sch. 2. Forms of indictment 1031
3. Form of judgment of Court of Crown cases reserved 1036
RECOGNIZANCES ACT.
R. S. C, c. 179.
Section 1. Surety may obtain order to render 1037
2. Sureties may arrest, etc 1037
3. Application for bail 1037
4. Entry of render 1037
5. Render in open court 1036
TABLE OF STATUTES. XXIX
Recognizances Act — {Continued.')
6. Arraignment, etc., not to discharge recognizance 1038
7. Other rights not affected 1038
8. Fines, etc., to be entered on a roll 1038
9. Duplicate roll to be transmitted to sheriff 1039
10. List of estreats to be prepared 1039
11. List to be submittt d to a judge 1039
12. Court may forbear estreating 040
13. Minute on roll by judge 1040
14. Proceedings when lands are seized 1040
15. Affidavit of clerk at foot of roll 1040
16. Release of person in custody, etc 1041
17. Discharge of forfeited recognizance 1041
18. Return of writ 1041
19. Copy of roll, etc., for Minister of Finance 1041
20. Payments by sheriff. 1042
21. Provisions applicable to Quebec 1042
22. Proceedings on estreat of recognizance in Quebec 1042
23. Transmission of recognizance in such case 1043
Sch. Form of writ of fieri facias 1044
FIXES AND FORFEITURES ACT.
R. B. C, c. 180.
Section 1. Recovery of penalties when no other mode is prescribed...! 046
2. To belong to the Crown in certain cases 1046
3. Or otherwise applied by Order-in-Council 1046
4. To form part of Consolidated Revenue Fund 1046
5. Limitation of actions 1047
PUNISHMENTS AND PARDONS ACT.
R. S. C, c. 181.
Section 1. Punishment after conviction only 1048
2. Degrees of punishment 1048
3. If offender is punishable under two or more acts, etc 1048
4. Conviction by verdict or on confession 1048
5. Sentence on conviction for treason 1048
6. Sentence on conviction for murder 1048
7. Order for execution _1049
8. Report by judge 1049
9. Treatment of condemned prisoner 1049
10. Judgment of death where executed 1049
11. Sheriff, etc., to be present 1050
12. Justices, etc., maybe present 1050
XXX TABLE OF STATUTES.
Punishments and Pardons Act— (Continued)
13. Surgeon to certify death 1050
14. Declaration to be signed by sheriff, etc 1050
15. Deputies may act 1050
16. Coroner's inquest on body 1050
17. Officers, etc., not to be jurors 1050
18. Burial 1050
19. Penalty for false certificate 1051
20. Certificate, etc., to be sent to Secretary of State 1051
21. Saving clause as to legality of execution 1051
22. Judgment of death, other matters concerning 1051
23. Punishment for offence not capital 1052
24. Punishment for felony 1052
25. Second conviction for felony 1052
26. Term of imprisonment 1052
27. Offender convicted of more offences than one 1053
28. Imprisonment in penitentiary 1053
29. Reformatories 1054
30. Whipping 1054
31. Sureties for keeping the peace, etc 1055
32. Notice to judge of want of sureties 1055
33. Fine 1055
34. Solitary confinement and pillory abolished 1068
35. Deodand 1068
36. Attainder 1069
37. Heir may enter after death of person attainted 1069
38. Pardon 1074
39. Effectof pardon 1074
40. Commutation of sentence 1075
41. Undergoing sentence equivalent to pardon 1075
42. Undergoing punishment, etc., a bar to further proceedingsl076
43. Royal prerogative saved 1076
44. Rules as to executions: 1076
45. Rules to be laid before Parliament 1076
46. Forms in Schedule to be used 1076
47. Army and navy laws notaffected 1076
Sch. Forms 1077
TABLE OF CASES CITED.
Abbott
Abrahams
Abrahams
Abrahat
Ackroyd
Adam
Adams
Rv.
v. R
R v.
PAGE
.. 432
.. 724
... 771
... 239
... 765
... 423
450,
— 70, 244
531, 796, 886
Adamson — 433,434
Aden — 289
Adey — 389
Ady — 433
Airey — 424
Allday — 499, 502
Allen — 79.131
Allen v. Wright 673
Allison R v 10, 79, 562
Allison, Re 1026
Amier, R v 363
Amos — 563
Anderson — 519,651
Andrews — ...364, 898, 970
Andrews v. The People 834
Anon 141, 187, 297, 562, 1012
Apollon, The — 661
Archer, R v. — ...151, 331, 433,
870, 873
432, 436
579
648
73, 518
73
Ardle y —
Aris —
Armstrong —
Arseott —
Arscott v. Lilley
Ash R v.
Ashley v. Dundas
Ashwell
Aspinall
Asplin
Asterly
Astley
Rv.
866
666
276
637
...477, 499, 530
433
, 322,327
PAGE
Aston Rv 482
Athea — 340
Atkin — 959
Atty. Gen. v. Beaulieu 1044
Atty. Gen. v. Murphy 999, 1006
Austin R v. 607, 712,721,904
Austin & King's Case 298
Austrey Rv 755
Avery — 250, 512
Ayes — 121
Aylett — 944
Ayley — 77
Bad cock
Bail
Bailey
Bain —
Bainton —
Baker —
Baldwin —
Ball —
Balls —
Bamfield —
Bank Prosecutions
Banks R v.
Bannen —
Barber —
Barker —
Barstead's Case
Barnard
Barnes
Barnes v.
Barratt
Barrett
Barrow
Rv.
White
Rv,
8
505
305, 340, 343,
347, 370, 392,
443, 939
56,365, 860,
971, 980, 1026
47
157, 321
450
...406, 426, 914,
972,997
388, 389, 509
519
900
142
7,553
15
349
810
427
245, 426, 935
1026
169, 861
215, 403
199
xxxu
TABLE OF CASES CITED.
PAGE
Barry R v 722
Bartlctt — 515
Barwell v. Winterstoke 587
Bass R v 239
Bassett — 187
Bate — 224
Bates — 434
Bathgate — 785
Batstone — 570
Batty — 395
Bauld — 637
Baxter — 445
Bayiies v. Brewster 669
Bazely R v 240
Beacall — ....388,389,734
Beale — 191
Beard — 843
Beardmore — 776
Beauinond — 398
Beaney — 291
Beatty v. Gillbanks 39
Beckett v. Dutton 926
Beckwith R v 898
Beckwith v. Philby 666, 676
Bedford R v 394
Bedingfield — 140
Beecbam — 435
Beeley v. Wingfield 957
Beere R v 829
Beeston — 903
Beetoa — 445
Bell — ....223, 771, 866
Belstead — 404
Benfield — ....716, 721, 751
Benge — 132
Bennett — 83,346,360
Bennett v. Watson 1060
Benson v. Offley 12
Bent R v. ...533, 782, 1028
B-rens — 841, 842
Beriau — 904
Bernard — 142,843
Berriman. — 222
Berry — ....241, 791, 965
Bertue — 572,579
PAGE
Berthiaurae Rv 290
Bertles — 424
Bertrand — 829,982,999
Bessey v. Windham 998
Betts Rv 386,397
Bice r. Jervis 960
Bignold R v 846
Bingley — 8
Bingly — 330
Birchall — 131
Birchenough — 20
Birch — 473, 870, 875,
877,878
Bird — 261, 792, 794,
854, 864, 869,
870, 872,'875
Birkett — 468
Bishop — 214
Bissonnette — 171, 786
Bitton — 7«9
Bjornsen — 652
Blackburn — 406, 725
Blackham — 324
Blackstone — 487,497 1
rilain — 107
Blakemore — 909
Bleasdale — 890
Bleau — 572
Blenkinsop — 516
Bloomheld — 433
Boardman — 476
Boden — 870
Bolland's Case 475
Bond R v 748, 800
Bonter — 900
Booth — 214
Boo.yman — 389
Borlhwick — 7,13
Bosser — 83oJ
Boucher — 441, 624, 843,4
Boulton
Bourdon
Bourne
— 435, 637, 734,
898
— 78
— 9»
TABLE OF CA.SE3 CITED.
XXX1H
PAGE
Bourne v. R 975
Bowden Rv 372,380,
Bo we a — 433, 529, 776,
949
Bowers — 390, 392
Bowman — 801
Bowray — 180
Bowyer — 600
Box — 514
Boyce — 160
Brakenridge — 509
Bradford — 180,595
Bradlaugh — 232, 724, 725,
770, 771, 898,
945
Bradshaw — 535, 806
Bramley — 241,254
Brannon — 29
Brashier v. Jackson 928, 930
Bray R v 159, 770
Brazier — 239
Bren — 394
Brettle — 800
Brice — 343, 347, 348,
839
Bndgman — 776
Brierly — 78
Briggs — 80, 150, 160, 847
Bright v. Eynon 1004, 1015
Brimilow R v. 198, 873, 875,
Brookes — 927
Brooks — 426,434
Broughton v. Jackson 674, 675
Brown R v. 14, 79, 153, 223,
322, 337, 573,
778, 788
Browne — 483
Brownlow — 416
Bruce — 981
Brunsby -- 312
Brummitt — , 969
Bryan — 424, 432, 436
Brydges, Ex parte 138, 698
Brydges Rv 702
Buckley — 905,906
PAGE
Bull R r. 135, 144, 240,
439
Bullock — 361, 365, 367,
593, 710, 949
Bulmer — 151, 434, 794,
955, 971
Bunkall — 249,285
Buna — 636
Burch — 722
Burgess — ....116, 151, 407
Burgon — 432
Burn3, Ex parte 978
Burns R v 847
Burridge — 624, 1020
Burrowes — 341
Burrows — 429,843
Burt — 847
Burton — 13,29,271,393,
421, 771
Butcher — 6, 843
Butteris — 149
Butterwick — 517
Butterworth — 354,406
Button — 862,873
Cabbage R v 269
Cadman — 149,153
Callan — 344
Camfield — 735
Campbell — 101, 126, 241,
373
Campbell v. R 721, 984, 992,
995, 1022
Camplin — 199, 1051
Canwell — 164
Carbray — 904
Carden — 231
Carey — Ill
Carlile — 975, 977
Carney — 520
Carpenter — 431
Carr 141, 389, 395, 651,
783, ,869, 873,
951, 952, DCS,
990, 1026
XXXIV
TABLE OF CASES CITED.
PAGE
Carrell R v 340
Carroll — 313,892
Carter — 363,892
Case — 192
Casey — 231
Caspar — 445
Castro v. R 738
Caswell R v 311
Catherall — 206, 854
Cattley v. Loundes 960
Caudwell R v 981
Chadwick — ..17,25,434,466
Chalking — 359
Ohalkley — 598
Chamaillard — 824,986
Chambers — 521
Chandler — 171
Chanter v. Greame 610
Chapman R v. 123, 400, 669, 776,
Chappie — 19
Charest — 383
Charlesworth — ....793, 798, 829
Charlewood — 292
Charnock's Case — 811
Chasson — 140
Chatburn — 117
Cheeseman — ....128,383,858
Cherry — 256
Child's Case 145
Child R v 570
Chiser's Case 269
Chisbolm R v 514
Chouinard — 420
Chowne t. Baylis 1074
Christian R v 416
Christopher — 266
Chute — 207
Clark — 765,967
Clarke — ....199, 250, 299
355, 368
Clay — 293
Claybtirn — 359
Clayton — 15, 571
Cleave v. Jones — 92 4
Clegg — 287
Clements — 897
PAGE
Clifford Rt 6
Close — 478
Gloss — 634
Cluderay — 858
Cockburn — 191, 206
Cockcroft — 201
Codd v. Cabe 186,669
Coggins R v 451
Coggs v. Bernard, 284
Cohen R v 254, 859
Cole — 703
Cole3 — 907
Coley — 392
Uolley — 563
Cdlicott — 499
Collins — 317, 466, 857, 858
Colmer — 222
Combe's Case < 466
Comer R v 354
Common-wealth v. Magee 848
Commonwealth v. Yerker 42:4
Coney R v 12
Conuell — ...531, 539, 793,
794, 795, 861,864
Connolly — ....181,205,208
Connor — . 562,872
Connol ley's Case 546
Considine R v 831
Coogan's Case 463, 512
Cook R v 223
Cooke — ....398, 482, 483
484, 835, 928
Cooke's Case — 926
Cooke v. Stratford 927, 928
Cooper R v. .14, 15, 172,416,
427
Coote — 904,906,909,986
Copelaud — 433
Corcoran — 40,968
Cordy — 449
Corey — 440
Cornellier — 639
Cornwall v. R 218, 936
Corporation of London R v 958
Corwin, Ex parte 707
TABLE OF CASES CITED.
XXXV
PAGE
Cory R v 259
Coslett'3 Case — 256
Cosser R v 289,420
Coster v. Merset 1013
Cotton R v 108
Coulson — 749
Court — 180
Cowell — 448
Cox — ....160, 161, 449
1028
Crab — 427
Cracknell — 620
Craddock — 447, 448
Cramp — 220
Craw — 10
Crawford — 175
Oxawshaw — 853
Creamer — 78
Crease v. Barrett 997
Cregan R v 880
Cre^swell — 78
Crick — 134
Crightou — ...389, 756, 764
Crisham — 12, 13
Crofts — 766
Cronan — 880
Cronia — 568,940
Cronmire — 417
Crook — 134
Crooke — 476
Cropper v. Hortoa 671
Crosby Rv 435
Crossley — 433
Croteau — 1045
Crow's Case — 385
Crowther — 476
Crump — 292
Crumptou — 872
Cruse — 11, 151, 873,875
Cuddy — ....12, 114
Cullen — 520
Cullum — 393
Cundy v.Lecocq — 215
Cunningham R v 162, 521, 980
Curran — 668
• PAGE
Curgerwen R v 82
Currie — 47
Curry — 515,519
Curvan — 122,669
Dade — 8
Dadsoa — 673
Dale — ....154,426,434
Danger — ... 298, 435, 441
Danu — 797
Dant — 130
Daoust — 967,987
Dirmely — 443
Dart — 155
David — 402
Davie3 — ....249, 285, 821
450, 948
Davies v. Pierce ...993, 998, 1022
Davis, R v 8, 138, 186,
337, 346, 347,
352, 360, 428
449, 450, 841,
891, 1026, 1028
Davis v. Russell 674
Davison R v. ..330, 938, 1023
Day — 192
Daynes — 290
Deacon — 783
Dear v. Knight — 913
Deasy — 32
Deaves — 267
De Banks — 285, 383
De Berenger — 473
Debruiel — 660
Dee — 199
Deeley — 897,926
Deer — 252, 450
Deering — 264
Deery — ....951, 953, 968
D'Eon — 774
Defoy v. R 637, 978
Delaworth R v 151
Denmour — 250,282
Densley — 449
Derbyshire — 590
Derecourt v. Corbi3hley 669
XXXVI
TABLE OF CASES CITED.
PAGE
Derrick Rv 828
De Rutzen v. Farr 998
Despatie, Ex parte 73
De Witt R v 301
Dicken — 206
Dilmore — 903
Dilworth — 873
Dingman — 879
Diprose — 394,407
Dixon — ...105,266,378,
391, 635
Dobbs — 348
Dodson — 582,610
Donally — 322
Donelly — 18
Donnavan's Case 562
Doody R v 116
Dougall — ...232, 775, 824,
850, 978, 981
Dougall v. R 977
Douglas Rv 839
Dovey v. Hobson 948
D >wey — 427
Dowing v. Cassel 668
Downey R v 785
Downie — 637
Downing — 13, 295, 721
Drage — 892
Draper — 151,873
Dring — 448
Drury — 794, 797, 976, 988
Dudley — 104
Duffy — 777
Duffin — 148,160
Dugal — 126, 137
Duncan — 981, 982
Dungey — 203, 861, 880
Dunlop v. R 974
Dunn R v. ...211,450, 478,
698, 891, 1056
Dunning — 726
Durocher — 439
Duval v. R 851,975, 977
Dwyer R v 84
Dyer — 8,448
Dyson — 10, 116, 965
PAGE
Eagle R v 120
Eagleton — 421, 634
Earl of Somerset 14
Eardley — 188
Edgell — 563,567
Edwards — ...136,615,62b
829, 915, 1006
Egginton — 360,721
Egginton's case — 1026
Elliott Rv 477
E!li3 — 81,331,870
882, 1002, 1017
Elrington — 187
Else — 8,546
Elsemore v. St. Briavels.. 562
England Rv 562
English — 437
E no, Ex parte — 487
Enoch R v 106
Epps — 516
Essex — 611
Etherington — 374
Evans — 350,426,520
Ewer v. Ambrose 914
Ewing R v 424
Faderman R v 967,973
Falkingham — 173
Falkner — 724
Fallon — 21
Fallows — 329
Fanning — 79
Farre's Case — 262
Farrell's Case — 257
Farrell R v 319,905
Farrington's Case 564
Farrow R v 219
Faulkner — 602,605,609,724
Fauntleroy — 511
Featherstone — 250
Feithenheimer — 422
Fenton — 125
Feore — 818,987
Ferens v. O'Brien 259
Ferguson R v. ...134, 277, 452
718, 720, 948
TABLE OF CASES CITED.
XXXVll
PAGE
Fidler R v 577
Field — 499
Finney — 137
Firth — 257, 8*9
Fisher — ..91,92,120,576
Fitch — 251,520
Fitzgerald — 512
Flanagan — 395
Flannagan — 338, 776
Flatman — 252
Flattery — 199
Fletcher — ..199, 416, 562,
1051
Flint — 426
Flowers — 276,388
Flynn — 163, 785
Folkes — 13
Fontaine — 82
Forbes — 185, 483
Ford — Ill
Foreman — 946
Forsyth — 747
Foster — ...432, 552, 577,
Foulke3 — 392
Fowler — ....984, 988, 995
Fox — 765, 944, 974
Fox v. Gaunt ....667, 669, 676
Frances R v 240
Francis — ....199, 438, 478
Frankland — 736
Franklin — 125
Franks — 545
Fraser — 981,990
Fray — 125
Freeman — 736
Freeth — 427
French — 521
Fretwell — 161
Frost — ...742, 809, 847
935
Fry — 424, 749
Fuidge — 770
Fullagar — 416
Fullarton — 934
Fuller's Case — 336, 337
PAGE
Furneaux R v 388
Furnival — 349
Gaby R v 734
Gadbury — 767
Gale — 393
Gallagher — 12,897
Gallears — ... 260
Ganes — 869,872
Garbett — 904
Gardner — 426, 614, 619,
620
Garland — ...351, 766, 970
Garner — 108
Garrett — ...249, 285, 435,
438, 531
Gascoigne — 324
GateFulford — 070
Gauthreaux's Bail 1045
Gajlor R v 16,118
Gazard — 51
Geach — ...468, 484, 813,
822
Geering — 108
George — 222
Gerrans — 905
Gerrish — 4S8, 537
Gibbons — 83,338,347
Gibson — .44, 853, 972,986
Gilbert — 243, 360
Gilchrist — 300,955
Giles — 6, 425, 481, 504
Gill — 397, 620
Gillis — 835
Gillow — 160
Gilmore — 179, 797
Gilsoa — 601
Giorgetti — 809
Girdwood — 624
Gisson — 202
Glass — ....401, 850, 971
Glover — 395
Glyde — 267
Gnosil — 322,326
Goadby — 880
XXXV111
TABLE OF CASES CITED.
PAGE
Goate R v 476
Goddard — 140
Goff — 421
Gogerly — 7
Golde — 416
Goldsmith — ...424,447,950)
951, 959, 1027
Goldthorpe — 222,866
Gomm — 416
Gooch — 306
Goodhall — ...218, 220, 424,
857
Goode — 964
Gooden — 521,523
Goodenough — 396
Goodfellow — 905
Gooding — 926
Goodman — 571
Goodwin — 518, 765
Gorbutt — 272,386,423
Gordon — i4) 110j 135
Goss — 432
Gough — 599
Gould — ....372, 487, 829
Gould v. Oliver 933
Graham Rv 402
Grainger — 777
Granger — 55
Grand Junction Ry. Co 653
Grant — 735
Gravel — 735
Graves v. Short — 1009, 1012
G™y R v 13, 172, 781,
950
Gra7 v. R 984, 995
Great Western R v 653
Gregory _ 28, 862
Green — 131,213,797,798
Greenhaigh — 435
Greenwood — 15,545,568,871
Grey's Case — jqq
Griffin v. Coleman 669
Griffin R v 78, 128
Griffith v. Taylor 673
Grimes R v 380
PAGE
Grimwade Rv 624
Grove — 399,885
Grover — 553
Gruncell — ....255, 269, 449
Guay — 986
Guelder — 399
Guernsey — 234
Gugy, Ex parte— 231
Gumble R v 273, 293, 939
Gurford v. Bailey 928
Gurney — 839
Guthrie — 191, 206
Guttridge — ...776,870,882
Hadfield Rv 595
Hagan — 111,331
Haigh — 281
Hailes v. Marks — 674
Haines R v 344
Hall — ....263, 344, 390
392, 393
Hallard — 337
Halton — 866
Hambly — ygg
Hamilton — ....277, 317, 372
373, 614
Hamilton v. R 433, 949
Hampton's Case— 732, 733
Hancock Rv 360
Handley — ....106, 137, 269
Hannon — 509
Hanway v. Boultbee 668
Hapgood R v 202,860,861
Harding — 258
Hardy — 595
Hare — 726
Hargreaves — 771
Harley — 6,148,893
Hading — 997
Harman — 326
Harmwood — 863
Harper — 479, 517
Harris — 47, 73, 141,
150, 337, 398,
509, 538, 570,
619,099, 711
table or cases cited.
XXXIX
PAGE
Harrison Rv 250,252
Hart — 478
Hartel — 841
Hartley — 339
Harvey — 51, 99, 238, 246,
292, 554
flaslam — 449
Hassall — ....249, 281, 285
Haswell — 61.62
Hathaway — 521
Haughtou — 5&8
Hawkes — 515
Hawkeswooi — 479
Hawkins — 10,396
Hawtin — 385
Haynes — 105
Hayward — 120
Haywood — 598
Hazell — 243
Hazelton — 439
Headge — 397
Heane — 771, 785
Heath — 297,300
Heaton — 83
Hedges — 542, 730
Hegarty v. Shine 196
Hemmings R v 263, 320
Hench — 244
Henderson — 288, 433, 796
Hennah — 168
Hennessey — 661,662
Hensler — 421,429
Heii3haw — 426
Henwood — 889, 948
Hermann — 547
Heseltine — 569,570
Hevey — 474
Hewgill — 434
Hewins — 928
Heymann v. R 945,951
Hey wood R v. 717, 751, 889, 948
Hibbert — 213,637
Hickson — ....232,917,940
Higgins — 47, 474, 487
Higgs — 341
PAGE
Hill R v 363, 434, 447
468, 483, 625
Hillman — 221
Hilton — ....275, 448. 754>
765, 969
Hinchcliffe's Case 145
Hincks R v 971
Hoare — 249,285
Hobson — 448
Hodge3 — ....307, 311, 965
Hodgson — ...10, 200, 201,
389, 469, 470, 475, 503
Hogan — 171, 172
Hogg v. Ward 674, 675
Hoggins Rt 389,397
Holbrook — 231
Holchester — 842
Hulden — ....476, 504, 699
Holland — 87
Hollingbury — 855
Hollis — ...213. 220, 276
Holloway —234,313,457,968
Holloway v. R 944
Holman R v 718
Holmes — ...176,201,207,
439, 745
Holroyd — 179
Holt — 435
Hood — 122
Hoodless — 1045
Hook — 51
Hopley — 128
Horan — 961
Horner — 321
Horsay — 103
Horseman — 453
Horton — 82
Howard v. R 71, 949, 951
Howarth R v. ...111,430, 665,
668, 673
Howell — 8,38,573
Howie — 5!5, 519
Howley — 520
Hoye v. Bush 124
Hubbard Rv 140
xl
TABLE OF CASES CITED.
PAGE
Huddell Rv 788
Hudson — 443
Hughes — .17, 23, 45, 129,
347, 393, 426, 445, 448, 900
Hugill — 378
Hungerford — 354
Hunt — ...151,157,394,
434, 665, 669, 699
Hunter — 517, 623
Huntley — 446
Hurse — 545
Hutchinson — 130, 350
Illidge R v 520
Ion — ...4«0, 481, 500,
502,545
Isaacs — 221
Israel — 789
Jackson Rv. ...199,233,286,
375, 399, 426, 615, 897, 927, 936
Jacob — 77
Jacobs — 67, 245, 261
James — ...427, 435, 476
658, 671, 782, 939
Jarrald — ....350, 353, 368
370, 710
Jarvis — 19, 339
Jeans — 598
Jenkins — 340, 341
Jennings — ....382, 848, 894
Jennison — ....424,433,434
Jenson — 389
Jepson — 625
Jervis — 445
Jerrett — 897
Jessop — 10, 104, 116>
426
John — 204, 622
Johnson — 8, 214, 215, 345,
355, 365, 721, 858, 1026
Johnson's Case 810
Johnston R v. ...108, 191, 206,
424 •
Joliffe, Ex parte 671
Jones & Palmer's Case 463
PAGE
Jones R v 82, 131, 137,
238, 269, 270, 306,
339, 399,427, 434,
563, 585, 624, 636,
652, 715, 720, 721,
790, 866, 889. 891,
926, 959
Jones v. R 831,978
Jordan's Case — 336
Joyce R v 519, 542, 730
Judah — 439
Jus ices, The — 961
Kain — 621,837
Kay — 518,522
Kaylor — 208
Kealey — 732
Keite — 102D
Keith — 509
Keena — 388
Kelleher — 439, 1027
Kelly — 7, 8
Kelly v. The Midland Great West-
ern Railway of Ireland Co 675
Kelly v. R 517,977
Kemp v. Neville— 670
Kendall Rv 275
Kenney — 252
Kenrick — 432
Kerr — ...266, 712, 818,
956, 972, 988
Kerr v. Leeman — 957
Kerrigan — 437
Kessel — 121
Kew — 130
Key — 793,809
Keyn — 651,661'
Killiam — ...432, 433, 457
Kimber — 1026
Kimbrey — 562
King ' —8,274,400,460,636
King v. Poe — 669
Kingston R v 721, 722
Kinloch's Case —778, 788, 831,1005
Kinnear Rv 515,828
Kipps — 214
TABLE OF CASES CITED.
xli
PAGE
Kirkham Rv 121, 338
Kirkwood — 8
Kitson — 564
Knewland — 323,955
Knight — ....268, 793, 945
Knnwlden v. R 770
Konigs, in re 665
Labadie R. v 568
Labouchere — 232
Lackie — 900
Lacombe — 820
Lalanne — 971
Laliberte — 201,980
Lallement — 952
Lambert — 399
Lamere — 848,894
Lamirande, Ex parte 487
Langhurst Rv 775
Langmead — 275,450
Langton — 439
Lapier's Case — 321
Laprise R v 68
Lara — 633
Larkin — ...935,948,970
Latimer — ... 164,605,609
Laurent v. R 976
Laurier R v 231
Lavey — 540
Lawes — 355,368
Lawless — 147
Lawrence — ... 344, 352, 356
Law- v. Eltringham 609
Laskie Rv 163
Lea — 801,803
Leach — 395
L ar — 268
Leblanc — 639
LeDante — 162
Ledbetter — 903
Ledbitter — 459
Leddington — 17
Ledger — 129
Ledwith v. Catchpole 666
Lee R v. ...102, 404, 432,
PAGE
533, 903, 916
Leech R v 652
Lees — 432
Lee te v. Hart 674
Lefroy R v 671
Leigh — 380
Lemott's Case 262
Lennard Rv 552
Leonard — 375,785
Levasseur — 73
Leveque — 73
Levine — 637
Levinger v. R ... 984, 985. 995
Lewis R v. ...149,343.482
559, 581,637
650, 661, 1029
Leyman v. Latimei 1076
Light R v 669
Lince — 437
Lindsay v. Cundy 960
Ling R v 946
Lister — 398
Lister'v. Perryman 675
Lithgo R v 359
Little — 202,914
Littlechild — 725
Lloyd — 44,623
Lock — 68,192,206
Lockett — 9
Loom — 926
Loose — 286
Lopez — 650
Lord Mayor — 232,768
Lord Sanchar — 18
Lovell — ... 261,376,389
Lovett — 839
Lowrie — 300
Low's Case — 834
Loyd — 202
Luck — 10
Lumley — 80
Lynch — .... 92, 120, 657,
946
Lyon — 479,511
Lyons — 336,569
xlii
TABLE OF CASES CITED.
PAGE
Macauley R. v 321
Mackally's Case 12
Mackerell Rv 577
Macklin — 959
Maddock's Case 522
Madge R v 659
Madox — 380
Maguire — .... 231, 806, 823,
900
Maher — 171
Mailloux — 40
Maloney — 116
Mankletow — 212
Manners — 8,546
Manning — 20, 567, 638
Mansel's Case 1005
Mansell v. R 819,944
Mansfield R v 450
March — 565
Marcus — 472, 729
Margetts — 337
Marks — ... 273, 734, 937
Markuss — 135
Marriott — 137
Marriott doe d. v. Edwards ... 929
Marsden R v 162
Marsh — 430,834,835,944,
Marshall — ... 390, 392, 478
Martin — 44, 68, 87, 103
125, 126, 163,'
191, 201, 206,
309, 337, 426,
479, 547, 584,
764, 832, 893,
949, 952, 968, 985
Martin v. Shoppee 190
Mason R v. ... 93, 305, 321,
424, 615, 784, 786,
973, 978, 1027
Masters — 396,845
Mathews — 746
Matthews — ...289, 586, 588,
590
Matthews v. Biddulph 669
Mawbey R v 1004, 1014
PAGE
Maxwell Rv 776
May — 224, 390
Mayers — ... 192, 200, 861
Mayhew v. Locke 671
Mayle Rv 390
Maynard — 91,92,703
Mazagora — 476
Mazeau — 510
Meade's Case 146
Meagle R v 301
Meakin — 429
Meany — 853
Meere's Case 404
Mehegan R v 191
Mellish — 385,389
Mellor — ...809, 816. 908,
972, 985, 986, 995
Meredith — 191,206
Merriman v. Ttie Hundred of
Chippenham 325
Metcalfe R v 297
Metcalfe v. Deane 1009, 1012
Michael R v 6, 107,149
Middleton — 234. 265
Miller — ...214,393,867
Millhouse — 845
Mi'loy — 904
Mills — 426, 429
MinterHart — 298
Mister — 156
Mitchell — 333, 516, 652, 883
Moah — 399
Mockford — 270
Moffatt — 479
Moffe*, Ex parte 609
Mogg R v 598
Moland — 15
Mole — 266,269
Monoghan — 281
Mondelet — 213
Moody — 407,520
Mooland — 437
Moore — 9, 266, 321,652
Mopsey — 515,517
Morby — 137
TABLE OF CASES CITED.
xliii
PAGE
Morfit R v 269
Morgan — 140
Morris — ...187, 254, 258>
302, 798
Morris 7. Wise — 312,668
Morrison R v 300,519,787
Morton — 480. 511
Moss — 443
Most — 142
Mouit — 978
Momitford — 158
Mucklow — 263
Mulholland — 881
Muller — 915
Munday — 306
Murphy — ... 11, 151, 185,
377, 512, 722,
829, 982, 984
Murphy v. Eills 666
Murray Rv 338,396
v. R 975
Murrow R v 150, 175
Musset — 611
Mu'.ters — 251
Mycock — 214
MacDaniel — 106
MacGrath — 323
M'Athey — 449
McCarthy — 774
McConohy — ,. 725
McCorkill — 521
McDonald — ....281, 389, 487,
582, 900
McEieaney — 707
McFee — 517
McGinnes — 546
McGrath. Ex parte 978
McGrath R v
McGregor — 388
McHolme — 665
Mcintosh — 479,519
Mclntyre — 87,961
McKale — 244
McKeever — 579
McKenzie — 74
PAGE
McKenzie v. Gibson 606
McLeod R v. ... 134, 135, 707
.McMakin — 8
.Mc.Vamee — 233
McNaugliton — 39
McNevin — 4-7
McPherson — ... 365, 372, !-55
McPherson v. Daniels 99
McQuarrie Rr 439
McQuiggan — 73, 84
Napper R v. ...371. 373, 710
Nash — 472, 475
Nasmith — 171
Nattrass — 570
Naylor — 433
Neale — 862, 863
Negus — 392
Nelson — 906
Nettleton — 393
Neville — 936
Newboolt — 564
Newill — 573, 601
Newman — 230, 907
Newton — 78, 185
Nicholas — 355, 368
Nicholl — 192
Nicholla — ... 137,331,450,
863, 1016
Nicholson — 247.329
Nigotti v. Colville 1054
Nisbett Rv 516
Noake — 387
Noakes — 135
Noon — 93,99
Norris — 306,587
North — 247
Norton — 785
Notman — 974
Nott — 4
Nugent — 59
Nunn — 1045
Nutbrowne's Case 338
Oate3 R v 432
O'Brien — 583, 797
xliv
TABLE OF CASES CITED.
PAGE
O'Brien, Ex parte 232
O'Connell v R. ...72 2,725,777
O'Connor Rv 140,443
Oddy - -450, 482. 891
Odgen — 499
Odgers — 778
O'Donnell — 460
O'Kane, Ex parte 978
Oldham Rv 369, 370
Oldroyd — "7
Olifier — 214
Oliver - 104,189,935,945
O'Neill — 197,331
O'Neill v. Longman 627
Orchard R ▼ 777, 939, 945
Orman — 637
O'Rourke — 806, 972
Orton - ....39,724,1053
Osborn — 776
Osmand — u0
Ouellette — 785
Overton — 969
Owen — 7, 373, 776, 926
Owens — 598
Oxenham — 284
Oxfordshire — 590, 1016
Oxley — 47
Paddle R v 624
Page — 500, 502, 545,
546
Paine — 346
Palliser — - 461
Palmer — 6,481,504
Panton v. Williams 674
Paquet Rv 207,749,786
Parish — 776
Parker — 70,306,427
Parke's Case — 246
Parkin R. v 852
Parkins — 842
Parkinson — 981
Parks and Brown's Case -163
Parnell Rv 637
Parry — 801
Partridge — 270
PAGE
Pascoe R v 460
Passey — 9
Patent Eureka and : Sanitary
Manure Co 698
Patrick R v 736
Patteson — ... 231, 823, 972
Patience — 123
Paxton — ... 487, 810, 967
Payne — 63, 725, 897, 898
Pear — 241, 292
Pearce — ... 241, 315, 362
Pearson — 188
Peat — 241, 320
Peck — ... 396, 473,636
Pedley — 45
Pelfryman — 330, 955
Pelletier — 56, 786, 986
Pembliton — 609
Perham, In re — 626,627
Perkins Rv 11,448
Perkins v. Bradley 1074
Perrott R v 439
perry _ ....222, 301, 866
Perry v. Watts 928
Petrie R v 372
Peters — 266
Phelps — ...«69, 870, 871,
875, 882
Philips — 457
Phillips — ...263, 292, 482,
830, 881, 882
Philp — 500, 601
Phipoe — 298,621
Picbe — 224
Pickford — 614,622
Pickup — 442
Pierce — 84, 85, 654, 958
Pike - 380
Pinkney — 633
Pitman — 291
Pitta - MM
Plummer — 10,11
Pool - 870
Poole — 313,457
Pooley — 301
TABLE OF CASES CITED.
xlv
PAGE
Portugal R v 409
Potter — 363
Poulton — 106
Pewell — 302,917
Powler — 143
Powner — ...477, 525, 526
Pratt — 243,432
Preston — „ 269
Price — 546,579
Price v. Seeley 669
Prince R v. ... 214, 245,416
Pritchard — ....734,789,935,
938
Privett — 269
Proud — 393
Piovost — ...331, 334, 806,
971
Puddick — ....204. 841, 842
Puddifoot — 926
Pulbroke — 520
Pulham — 18
Purchase — 387, 778
Pym — 87
Queen's Case 915, 916.
Quinn R v 787
Radbourne R. v 903
Radcliffe — 206,437
Radford — 481
Rafferty v. The People Ill
Ragg R v 432
Ramsay — 232
Ramsay v. R 976
Ransford Rv 862
Ransom — 299
Ratcliffe — 790. 810
Rawlings — 339
Rawlins — 292
Rawlins v. Ellis 671
Rea R v 79
Read — 191,205
Read v. Ccker 190
Reane R v 322
Redman — 621
PAGE
Reece Rv 306
Reed — 74. 239,266, 396,
519
Reeves —
Regnier — 785
Reid — 871,883
Reynett — 981
Rice — 306
Richards — 29, 36,619, 620,
710
Richardson — 184, 449, 900,
972
Richmond — 288,553
Rider — 843
Ridgely — c5j
Ridgway — 432
Riel — 140
Rigby _ 487
Riley — ....201, 203, 247
Rinaldi — 509
Rilson — 467,511
Roadley — 205, 207
Roberts — 4% 449, 480,
553, 962
Roberts al. Chambers Case 343
Roberts v. Orchard 668
Robertson Rv 616
Robin3 — ...201, 213, 321
Robinson — 238, 315, 344,
983, 440, 539,
548, 614, 620
Robson — 239, 250, 254,
282
Roche — 793
Rochon v. Leduc 1074
Roden R v 109
Rodgers — 340
Roe — 259
Roebuck — 421. 426, 432,
858
Rogers — 12. 384, 448,
519, 537, 554,
663, 845
Rogier — 443
Rolfe — 1069
Rose Milne — 809
Rosenberg — 252
xlvi
TABLE OF CASES CITED.
PAGE
Rosinski Rv 192
Ross — .44, 56, 971, 980
Rosser — 374,832
Rothwell — 95
Rowlands — 627,981
Rowley — 95, 505
Rowton — 847
Roxburg — 151, 162
Roy — 633,637
Ruck — 650
Rudge — ...407, 423, 885
Radge's Case 386
Rudland Rv 203,204
Rugg — 179
Russell — 10,17.344,352,
659, 707, 835
Ryalls v. R 721
Ryan R v. 148, 152, 159,
782, 952, 1029
Ryland — ...191,206,795,
860, 861
Rymes — 934
Sainsbury v. Matthews 929
Salmon R v 138
Salop — 1016
Salvi — 103,799
Sample — 241
Sanchar, Lord — 18
Sanders — 363
Sansome — 1026
Satchwell — 579
Sattler — 650
Saunders — 15, 74, 136, 175,
192, 873
Saunders, In re 1074
Savage Rv 78,79, 775
Scaife — 981, 999
Scalbert — 829
Scbleter — 790
Scott, Ex parte 667
Scott R v. ...171, 295, 731,
793
Scott v. R 296
Scully R v 146
Sellars — 232
Sellis — 106
Sellon — 90
Selway — 329
PAGE
Semple Rv 954
Seneeal — 936, 937
Senior — 107, 136
Serva — 601
Sessinghurst House Case 10
Seward Rv 636
Shannon — 197
Sharp — (;,-,i
Sharpe — 529, 654
Shaw — 105
Sheen — 794,919
Shepherd — 307
Sheppard — 243, 476, 519,
573, .',74
Sherwood — 432
Sherwood's Case 96
Shickle Rv 259
Shimmin — 845
Shott — 206,863,933
Shrimpton — 767
Shukard — 481
Shurmer — 902
Shuttleworth — 60, 809
Sill v. R 728, 782, 949
Silvester Rv 981
Sinimonds — 78
Simon's Case 325
Simons Rv 322
Simpson — 134, 316, 702
Sinclair — 196
Sinclair's Case 155
Skeen — 302.
Skeet — 10
Slowly — 243
Small — 242
Smith, In re 487
Smith R v. 106, 117, 129,
136, 140, 144,
155, 171,300,
336, 337. 339,
342, 346, 347,
364, 389, i>93,
396, 405, 448,
450, 515, 519,
520, 601, 614,
622, 657, 796,
853, 809, 872,
899, 903, 959,
969, 970, 972,
995
TABLE OF CASES CITED.
xlvii
PAGE
Smith v. Brandram 928
Smith v. Knoweldon 929
Smythies R v 658
Snell — 866
Snelling — 519
Snowley — 385
Soares — 8, 504
Somerton — 388
Soucie — 565,906
Spanner — 347,348
Sparrow — 189
Spears — 239
Speed — 431
Spelman v. R 946, 976
Spencer R v. ...135, 393. 427,
579, 765
Spencer's Case 325
Spiller R v 134
Spilling — 134
Spriggs — 343
Sproule, In re ....707, 971, 977,
978
Sprungli Ev 652
Squire — 389
Stainer — 395
St. Amour — 771
Stascliffe — 959,962
Standley — 9, 258
Stansfield — 420,946
Stantoa — 187,203
Steel — 228, 790
Steels — 425
Stephens — 847
Stephens v. Meyers 19t
Sterling Rv 512
Sternberg — 637
Sterne — 12
Stevens — 150
Steventon — 716
Steward — 321
Stewart — ....6, 7, 504, 521
905, 1045
Stewart's Case 799
St. George R v 153, 839, 871,
882
PAGE
Stiles Rv 926
Stitt — 221
St. John Long — 133
St. Laurent v. R 353
Stock R v 241, 292, 338
Stoddard — 839
Stone — 426,519
Stonebouse v. Elliott 674
Stonnel, Rv 765
Stopford — 157, 160
Story — 427
Stowe — 139
Strahan — 302
Strange — 151, 719
Stroulger — 946
Stubbs — 898, 970
Studd — 969
Sturge — 936
Sullens — 398
Summers — 766
Suprani — 751,891
Suter — 432
Sutton — 293, 552
Swalwell — 1045
Swatkins — 579,841
Swindall — ...9, 13, 129, 130
Sykes — 1022
Tacey Rt 576
Taffs — 394
Taft — 478
Tancock — ....793,795,802
Taplin — 322
Tasse — 232
Tatlock — 416
Tatlock v. Harris 471, 475
Taylor R v. 12,27, 118, 131,
164 252, 372,
395, 473, 519
571,637, 775,
793,845,873
Taylor's Cage 582
Taylor v. Newman 294
Teague Rv „. 480
Teal — 981
xlviii
TABLE OF CASES CITED.
PAGE
Thayer v, R 637
Theal v R 139
The World R.v 232
Thoman — 608, 747
Thomas — ...373, 520, 547,
893, 1056
Thompson — ...122,238,245,
251, 256, 316,
337, 355, 371,
372, 426, 898,
899, 905
Thomson — 348
Thorley — 385
Thorn — 518,520
Thorton — 888
Thorp — 398
Thurborn — 234,266
Tierney — 551,955
Timmins — 213
Timothy v. Simpson 668, 669
Tinckler's Case 997, 1015
Tite, Rv 389
Titley — 221
Tivey — 560
Todd — 476, 483
Tolfree — 250
Tollett — 251
Tongue — 393
Tonkinson — 289
Topple — 401
Torpey — 255
Tower — 603,980
Towers — 126
Towle — 12,721
Townley — 259
Townley's Case 743,810
Townsend Rv 389,403
Townshend — 418
Tracy — 27
Trafford v. R 1020
Trainer Rv 132
Tranchant — 614
Trapshaw — 340
Trebilcock — ... 269, 853, 968
Treble — 997
Treharne — 744
PAGE
Tremblay Rv 703
Tremearne — 783
Trenfield — 476
Trevelli — 847
Trevenner — 313
Trilloe — 106
Tucker — 618,619
Tuckwell — 8
Tuffs — 729
Tulley v. Corrie 168
Turner R v. 82,83,339,391,
449, 540, 559,
578, 778, 782,
954, 1028
Turton — 964
Twist — 275
Tyers — 388
Tyler — 12,624
Tylney — 471, 474, 512
Tymms — 936
Tyrie — 394,969
Upton R v 181, 594
Van Butchell R v 133
Vandercomb — ... 795, 864, 954
Varley — 538
Vaughan — 484
Vaux's Case 6, 802, 803
Verelet Rv 185
Vicary v. Farthing 1009
Vincent Rv 734,936
Virrier — 997
Vodden — 852
Vonhoff — 806
VonSeberg — 652
Vyse — 299
Wade R v 264, 830
Wadge — 850
Wainwrigh* — 844, 905
Waite — 240
Wakeling — 432
Walker — ... 74, 129, 187,
258, 303, 390
632, 669, 873
TABLE OF CASES CITED.
xlix
PAGE
Walker v. Mayor of London ... 959
Walkley Rv 448
Wall " — 479
Wallace — 601
Wallis — 12
Walne — 431
Walsby v. Auley 626
Walsh" Rv 256,297
Walstenholme — 399,400
Walter, Ex parte 73
Walter R v 707
Walters — 359
Walton — 616
Wandsworth — 981
Warburton — 637
Ward — ...164, 619, 625,
718, 798, 829, 866
Wardle — 831
Warner — 453
Warren — 562
Warshaner — ..., 509, 949
Wason, Ex parte 768
Waters, R ? 62, 779, 954
Watkins — 866,873
Watkinson — 951
Watson — 426
Watson v. Bodell 670
Watts R- v 301, 396
Wavell — 435, 531
Waverton — - 949
Webb — —-87, 133, 313,
516, 782, 842, 897, 968
Webster — 70,206,407,
935
Wedge v. Berkley 674
Weeks Rv 554
Weir — 124
Welch — ...399, 480, 545,
598, 609
Welland — 73
Wellings — — 904
Wells — 249, 284
Welman — 435
Welsh — 93
Welton — 934, 936
PAGE
Wemyss v. Hopkins 187
Wenmouth Rv 346,362
West — ...269, 300, 301,
424, 519, 577
Westbeer — 303, 855
Western — 937
Westley — 188, 792, 793,
937
Weston — 137, 845
Westwood — 339, 360
Whalley — 832
Wheatly — ....633, 780, 782
Wheeldon — ....351, 352, 356
Wheeler — 350
Whelan — 812
Whelan v. R ...944, 974, 976
989
Whiley R v 658
Whitaker v. Wisbey 1074.
White R v. ..10, 174, 239,
257, 395, 416,
450, 522, 830,
842, 847, 946
White v. Feast. 611
Whitehead Rv 135,1074
Whiteman — ...307, 581, 608
Whitely — J21
Whittingham — 587
Wickham — 426. 434
Wickman — 427
Wiggs — 127
Wiley — ....448, 478, 860
Wilkes — 976,1053
Wilkins — 168
Wilkinson — 253
Wilkinsons Case 257
Wilkinson v. Dutton 187
Wilks' Case — 472
William Bv 239
Williams — 6, 153, 192,
199, 233, 248,
293, 400, 435,
488, 537, 608,
873, 905, 1053
Williamson — 133,429
TABLE OF CASES CITED.
PAGE
Willis
Rv
....235, 766
Willmott
—
1063
Willot
436
Willoughby
Willshire
—
84
Wilson
219,
245, 338,
398,
447, 468,
478,
905, 950
—
323
108
Winsor
798,
802, 829,
851,
897, 898
969,
977, 984,
989,
995, 1007,
1015,1016, 1022
516
Withal
—
354
Withers
Wollaston
—
68, 191, 206
Wood
—
....150, 202, 652
Woodhall
—
331, 854, 956
Woodhead
—
Woodhurst
—
...192, 206
Woodward
—
448,
558, 574,
578,
579, 580,
589,
710
ooler
PAGE
Woolf Rv 828
Woolford — ... 445
Woolley — 426
Woolmer — Ill
Woolridge — 542
Worrald — 306
Wortley — 399
Wright doe d. v. Tatham 998
Wright R v. 106, 203, 204,
329, 381, 396,
732, 733, 873,
938
Wynn — 289
Wynne — 268
Yarrington Rv 47
Yatea — 299
Yeadon — 164, 189, 984,
985, 996
Yend — 293
Young — 12,63,114,121
199, 426, 452,
751
Young's Case — 716
Young t. R — 721
Zulueta R v 839
LIST OF ABBREVIATIONS.
A. & E. Adolphus and Ellis, Reports
And. Anderson's King's Bench Reports
B. & A. Barnewall and Adolphus' "
B. & Aid. Barnewall and Alderson's "
B. & C. Barnewall and Cress well's "
B. & P. Bosanquet and Puller's "
B. 4 S. Best and Smith's "
Beav. Beavan's Chancery "
Bing. Bingham's K. B. "
Brod. & B. Broderip and Bingham's H
Burr. Burrows' u
C. B. Common Bench "
C. <fe. F. Clark and Finelly's "
C. & K. Carrington and Kirwan's X. P. Reports
C. & M. Carrington and Marshman " "
C.i P. Carrington and Payne's " "
Ca. Temp. H. Cases tempore Hardwicke
Cald. Caldecott's Reports
Camp. Campbell's Reports
Carr. Supp. Carrington's Criminal Law
Chit. Chitty's " "
C.L.J Canada Law Journal, Oat.
C. L. T. Canadian Law Times, Ont.
C. M. & R. Crompton, Meeson & Roscoe's Reports
Co. Coke's Reports
C. P. D. Law Reports, Common Pleas Division
Cro. El. Croke's Reports, Elizabeth
Cro. Jac. Croke's Reports, James
C. S. C. Consolidated Statutes of Canada
C. S. L. C. Consolidated Statutes of Lower Cana-ia
C. S. U. C. Consolidated Statutes of Upper Canada
D. & L. Dowlingand Lownde3' Reports
D. & M. Davison and Merivale's "
D. & R. Dowlingand Ryland's "
D. C. C. Deacon s Crown Cases
Dears. Dearsley's " "
Dears. & B. Dearsley aud Bell's Crown Cases
lii
LIST OF ABBREVIATIONS.
Den. Denison's Crown Cases
Doug. Douglas Reports
Dy. Dyer's "
E. & B. Ellis and Blackburn's Reports
E. B. & E. Ellis, Blackburn and Ellis' "
E. & E. Ellis and Ellis' "
F. & F.
Fost.
Foster and Finlason's
Foster's Crown Cases
G. &D.
G. &0.
Greenl. Rep.
H. & C.
H. &N.
Han.
111.
Inst.
Ir. C. L. R.
J. P.
Gale and Davison's Reports
Geldert and Oxley's Nova Scotia Reports
GreenleaPs Maine "
Hurlstone and Coltman's "
Hurlstone and Norman's "
Hannay's New Brunswick "
Illinois State "
Coke's Institutes
Irish Common Law Reports
Justice of the Peace
L. &. G. Leigh and Cave's Crown Cases
L. C. J. Lower Canada Jurist
L. C. L. J. Lower Canada Law Journal
L. C. R. Lower Canada Reports
Ld. Raym. Lord Raymond's "
L. J. Law Journal (England)
1.. N. Legal News, P. Q.
L. R. C. C. R. Law Reports, Crown Cases Reserved
L. R. C. P. Law Reports, Common Pleas.
L. R. H. L. Law Reports, English and Irish Appeals
L. R. P. C. Law Reports, Privy Council
L. R. Q. B. Law Reports, Queen's Bench
L. T. Law Times Reports
M. & G. Manning and Granger's Reports
M. & M. Moody and Malkin's "
M. & Rob. Moody and Robinson's "
M. & S. Maule and Selwyn's ''
M. & W. Meeson and Welsby's "
Man. L. R. Manitoba Law Reports
Marsh. Marshall's Reports.
M. L. R. Q. B. Montreal Law Reports, Queen's Bench
LIST OF ABBREVIATIONS. liii
Mod. Modern Reports
Moo. C. C. Moody's Crown Cases
N. B. Rep. New Brunswick Reports
0. R. Ontario Reports
P. & B. Pugsley and Burbidge, New Brunswick Reports
Plow. Plowden's K. B. Report
P. R. (Ont.) Practice Reports, Ontario
Pugs. Pugsley '3 New Brunswick Reports
P. Wms. Peere Williams, K. B. Reports
Q. B. Queen's Bench "
Q. B. D. Law Reports, Queen's Bench division
Q. B. R. Dorion's Queen's Bench Report, Montreal
Q. L. R. Quebec Law Reports
R. & C. Russell & Chesley's Nova Scotia Reports
R. <£ M. Ryan and Moody's Reports
R. ft If. C. C. R.Moodys Crown Case3
R & R. Russell and Ryan's Reports
Rep. Coke's Reports
R. L. Revue Legale, P. Q.
R. S. B. C. Revised Statutes of British Columbia
R. S. N. B. Revised Statutes of New Brunswick
R. S. N. S. Revised Statutes of Nova Scoria
Russ. Russell on Crimes
Ru33. & Geld. Russell and Gelderts Nova Scotia Reports
Salk. Salkeld's Reports
S. C. R. Supreme Court of Canada Reports
Show. Shower's Reports
St Tr. State Trials
Str. Strange's Reports
Taun. Taunton'3 "
T. R. Term "
T. Raym. T. Raymond's "
Tyr. Tyrwhitt's ■
U. C. C. P. Upper Canada Common Pleas
U. C. Q. B. Upper Canada Queen's Bench
W. R. Weekly Reporter
Wils. Wilson's K. B. Reports.
THE
CRIMINAL STATUTE LAW
DOMINION OF CANADA.
CHAPTER 141.
AN ACT EESPECTIXG EXTRA-JCDICIAL OATHS.
H
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
1. Every justice of the peace, or other person who administers, or
;causes or allows to be administered, or receives or causes, or allows
.to be received, any oath, affidavit, or solemn affirmation, touching
any matter or thing whereof such justice or other person ha* not
jurisdiction or cognizance by some law in force at the time being, or
authorized or required by any such law, is guilty of a misdemeanor,
and liable to a fine not exceeding fifty dollars, or to imprisonment for
any term not exceeding three months. — 37 V., c. 37, s. 1, part, and s. 2.
2. Nothing herein contained shall be construed to extend to any
)ath, affidavit or solemn affirmation, before any justice in any matter
or thing touching the preservation of the peace, or the prosecution,
:rial or punishment of any offence, or to any oath, affidavit or
affirmation required or authorized by any law of Canada, or by any
'aw of the Province wherein such oath, affidavit or affirmation is
received or administered, or is to be used, or to any oath, affidavit or
tffirmation which is required by the laws of any foreign country to
;ive validity to instruments in writing designed to be used in such
oreign countries respectively.— 37 V., c. 37, s. 1, part.
B
2 EXTRA-JUDICIAL OATHS.
3. Any judge, justice of the peace, public notary, or other
functionary authorized by law to administer an oath, may receive
the solemn declaration of any person voluntarily making the same
before him, in the form in the schedule to this Act, in attestation of
the execution of any written deed or instrument, or allegations of fact,
or of any account rendered in writing. — 37 V., c. 37, s. 1, part.
4. Any affidavit, affirmation or declaration required by any fire,
life or marine insurance company, authorized by law to do business
in Canada, in regard to any loss of property or life insured or assured
therein, may be taken before any commissioner authorized to take
affidavits, or before any justice of the peace, or before any notary
public for any Province of Canada ; and any such officer is hereby
required to take such affidavit, affirmation or declaration. — 32-33 V.,
c. 23, s. 4.
SCHEDULE.
I, A. B., do solemnly declare that (state the fact or facts declared
to), and I make this solemn declaration conscientiously believing
the same to be true, and by virtue of the " Act respecting extra-
judicial oaths."
Sec. 1 is taken from sec. 13 of 5-6 W. 4, c. 62, of the
Imperial Statutes, the preamble of which reads thus :
" Whereas a practice has prevailed of administering
and receiving oaths and affidavits voluntarily taken and
made in matters not the subject of any judicial enquirj
nor in any wise required or authorized by any law ; an
whereas doubts have arisen whether or not such proceed-
ing is illegal, for the suppression of such practice and
removing such doubts, Her Majesty, etc."
Sir William Blackstone, before this Statute, had ss
(Vol. IV, p. 137) : " The law takes no notice of any per-
jury, but such as is committed in some Court of Justice
having power to administer an oath ; or before some mag
trate or proper officer, invested with a similar authority
EXTRA-JUDICIAL OATHS. 3
in some proceedings relative to a civil suit or a criminal
prosecution, for it esteems all other oaths unnecessary at
least, and therefore will not punish the breach of them.
For which reason, it is much to be questioned how far any
magistrate is justifiable in taking a voluntary affidavit in
any extra-judicial matter, as is now too frequent upon every
petty occasion, since it is more than possible that, by such
idle oaths, a man may frequently, in foro conscientia:,
incur the guilt, and, at the same time, evade the temporal
penalties of perjury."
"And Lord Kenyon, indeed, in different cases, has
expressed a doubt, whether a magistrate does not subject
himself to a criminal information for taking a voluntary
extra-judicial affidavit." — 3 Burn's Just. v. Oath.
Indictment. — The Jurors for Our Lady the Queen upon
their oath present, that J. S. on at being one
of the Justices of Our said Lady the Queen, assigned to
keep the peace in and for the said county (or district j,
did unlawfully administer to and receive from a certain
person, to wit, one A. B., a certain oath, touching certain
matters and things, whereof the said J. S., at the time
and on the occasion aforesaid, had not any jurisdiction
or cognizance by any law in force at the time being,
to wit, at the time of administering and receiving the
said oath, or authorized, or required by any such law;
the same oath not being in any matter or thing touching
the preservation of the peace, or the prosecution, trial or
punishment of any offence not being required or author^
ized by any law of the Dominion of Canada, or by any
law of the said Province of wherein such oath has
been so received and administered, and was to be used
(if to be used in another Province, add " or by any law of
the Province of wherein the said oath (or affidavit)
4 EXTRA-JUDICIAL OATHS.
was (or is) to be used ") ; nor being an oath required by
the laws of any foreign country to give validity to any
instrument in writing, designed to be used in such
foreign country ; that is to say, a certain oath touching
and concerning (state the subject-matter of the oath or
affidavit so as to show that it was not one of which the
Justice had jurisdiction or cognizance, and was not
within the exceptions) against the form of the Statute in
such case made and provided, and against the peace of
Our Lady the Queen, her crown and dignity. — Archbold,
829.
A county magistrate complained to the bishop of the
diocese of the conduct of two of his clergy ; and to substan-
tiate his charge, he swore witnesses before himself, as
magistrate, to the truth of the facts : held, that the matter
before the bishop was not a judicial proceeding, and there-
fore that the magistrate had brought himself within the
Statute against voluntary and extra-judicial oaths, and that
he had unlawfully administered voluntary oaths, contrary
to the enactment of the Statute. — R. v. Nott, Car. & M.
288 ; 9 Cox, 301.
In the same case, on motion in arrest of judgment, it
was held, that an indictment under this Statute (5 and 6
Will. 4, c. 62, s. 13) is bad, if it does not so far set out
the deposition, that the Court may judge whether or not
it is of the nature contemplated by the Statute, that the
deposition and the facts attending it should have been
distinctly stated, and the matter or writing relative to
which the defendant was said to have acted improperly
should have been stated to the Court in the indictment, so
that the Court might have expressed an opinion whether
the defendant had jurisdiction, the question whether the
defendant had jurisdiction to administer the oath being one
EXTRA-JUDICIAL OATHS. 5
of law, and to be decided by the Court ; but the majority
of the Court thought that it was not necessary to set out
the whole oath. Greaves nevertheless thinks it prudent
to set it out at full length, if practicable, in some counts. —
1 Russell, 193, note.
Upon the trial, to establish that the defendant is a
Justice of the Peace, or other person authorized to receive
oaths or affidavits, evidence of his acting as such will,
primd facie, be sufficient. — Archbold, 830.
And it is not necessary to show that he acted wilfully
in contravention of the Statute : the doing so, even inad-
vertently, is punishable. — Idem.
ACCESSORIES, AIDERS, ABETTORS, Etc.
The general definition of a principal in the first degree
is one who is the actor or actual perpetrator of the fact.
But it is not necessary that he should be actually present
when the offence is consummated; for if one lay poison
purposely for another who takes it and is killed, he who
laid the poison, though absent when it was taken, is a
principal in the first degree. Vauafs case, 4 Rep. 44 b ;
Fost. 349 ; R. v. Harley, 4 G. & P. 369. So, it is not
necessary that the act should be perpetrated with his own
hands ; for if an offence be committed through the medium
of an innocent agent, the employer, though absent when
the act is done, is answerable as a principal in the first
degree. See R. v. Giles, 1 Mood. G. G. 166; R. v.
Michael, 2 Mood. G. C. 120; 9 C & P. 356; R. v. Clif-
ford, 2 G. & K. 202. Thus, if a child, under the age of
discretion, or any other instrument excused from the
responsibility of his actions by defect of understanding,
ignorance of the fact, or other cause, be incited to the
commission of murder or any other crime, the inciter,
though absent when the fact was committed, is, ex neces-
sitate, liable for the act of his agent, and a principal in
the first degree, Fost. 349 ; 1 Hawk. c. 31, s. 7; R. v.
Palmer, 1 N. R. 96; 2 Leach, 978; R. v. Butcher, Bell,
6 ; 28 L. J. (M. G.) 14. But if the instrument be aware
of the consequences of his act, he is a principal in the first
degree, and the employer, if he be absent when the fact is
committed, is an accessory before the fact. R. v. Stewart,
R. & R. 363 ; R. v. Williams, 1 Den. 39 ; 1 C. & K. 589 ;
ACCESSORIES, ETC. 7
or, if he be present, as a principal in the second degree.
349 ; unless the instrument concur in the act merely
for the purpose of detecting and punishing the employer,
in which case he is considered as an innocent agent. — -
R. v. Bannen, 2 Mood. G G 309 ; 1 G 6 K. 295.
Principals in the second degree. — Principals in the
second degree are those who are present, aiding and
abetting, at the commission of the fact.
Presence, in this sense, is either actual or constructive.
It is not-necessary that the party should be actually present,
an ear or eye-witness of the transaction ; he is, in con-
struction of law, present, aiding and abetting, if, with
the intention of giving assistance, he be near enough to
afford it, should the occasion arise. Thus, if he be outside
the house, watching, to prevent surprise, or the like, whilst
his companions are in the house committing a felony, such
constructive presence is sufficient to make him a principal
in the second degree. Fost. 347, 350. See R. v. Boiih-
. 1 Dougl, 207 ; 1 Leach, 66; 2 Haul: c 29, 8ft .', S ;
1 Ru88. 31 1 Hale, 555; R. v. Gogerly, R. <L- R. 343 ;
R. v. Oicen, 1 Mood. C. C. 296. But he must be suffi-
ciently near to give assistance. R. v. Stewart, R. <£• R. 303 ;
and the mere circumstance of a party going towards a
place where a felony is to be committed, iu order to assist
to carry off the property, and assisting in carrying it off, will
not make him a principal in the second degree, unless, at
the time of the felonious taking, he were within such a
distance as to be able to assist in it. R. v. Kelly, R. <£ R.
421; 1 Russ. 27. So, where two persons broke open a
warehouse, and stole thereout a quantity of butter, which
they carried along the street thirty yards, and then fetched
the prisoner, who, being apprised of the robbery, a-
iu carrying away the property, it was holden that he was
8 ACCESSORIES, ETC.
not a principal, but only an accessory. R. v. King, R. & R.
332. See R. v. M'Makin, Id. ; R. v. Dyer, 2 East, P. C-
767. And although an act be committed in pursuance of
a previous concerted plan between the parties, those who
are not present, or so near as to be able to afford aid and
assistance at the time when the offence is committed, are
not principals, but accessories before the fact. R. v.
Soares, R. & R. 25 ; R. v. Davis, Id. 113; R. v. Else, Id.
142 ; R. v. Badcock, Id, 249 ; R. v. Manners, 7 C. &P.
801 ; R. v. Howel, 9 C. & P. 437 ; R. v. Tuckwell, C. &
Mar. 215. So, if one of them have been apprehended
before the commission of the offence by the other, he can
be considered only as an accessory before the fact. R. v.
Johnson, C. & Mar. 218. But presence during the whole
of the transaction is not necessary ; for instance, if several
combine to forge an instrument, and each executes by him-
self a distinct part of the forgery, and they are not together
when the instrument is completed, they are, neverthless,
all guilty as principals. R. v. Bingley, R. & R. 446.
See 2 East, P. C. 768. As, if A. counsel B. to make the
paper, C. to engrave the plate, and D. to fill up the names
of a forged note, and they do so, each without knowing
that the others are employed for that purpose, B., C, and
D. may be indicted for the forgery, and A. as an accessory ;
R. v. Dade, 1 Mood. C. C. 307; for, if several make distinct
parts of a forged instrument, each is a principal, though
he do not know by whom the other parts are executed,
and though it is finished by one alone in the absence of
the others.— R. v. Kirkuvod, 1 Mood. C. C. 304. See R. v.
Kelly, 2 C. & K. 379.
There must also be a participation in the act; for
although a man be present whilst a felony is committed,
if he take no part in it and do not act in concert with
ACCESSORIES, ETC. 9
those who commit it, he will not be a principal in the
second degree, merely because he did not endeavour to
prevent the felouy, or apprehend the felon. 1 Hale, 439 ;
Fost. 350. It is not necessary, however, to prove that the
party actually aided in the commission of the offence ; if
he watched for his companions in order to prevent surprise,
or remained at a convenient distance in order to favour
their escape, if necessary, or was in such a situation as to
be able readily to come to their assistance, the knowledge
of which was calculated to give additional confidence to
his companions, in contemplation of law, he was present
aiding and abetting. So, a participation, the result of a
concerted design to commit a specific offence, is sufficient
to constitute a principal in the .second degree. Thus, if
several act in concert to steal a man's goods, and he is
induced by fraud to trust one of them, in the presence of
the others, with the possession of the goods, and then
auother of the party entice the owner away, that he who
has the goods may carry them off, all are guilty as prin-
cipals. R. v. Standby, R. & R. 305 ; 1 Russ. 29 ; R. v.
Passey, 7 C. <fe P. 282; R. v. Lochett, Id. 300. So, it has
bjen holden, that to aid and assist a person to the jurors
uuknown, to obtain money by ring-dropping, is felony, if
the jury find that the prisoner was confederate with the
person unknown to obtain the money by means of the
practice. R. v. Moore, 1 Leach, 314. So, if two persons
driving carriages incite each other to drive furiously, and
one of them run over and kill a man, it is manslaughter in
both. R. v. S'dndall, 2 C. & K. 230. If one encourage
another to commit suicide, and be present abetting him
while he does so, such person is guilty of murder as a
principal ; and if two persons encourage each other to self-
murder, and one kills himself, but the other fails in the
10 ACCESSORIES, ETC.
attempt, the Latter is a principal in the murder of the other.
R. v. Dyson, R. & R, 523. See R v. Russell, 1 Mood. C. G.
356 ; R v. Alison, 8 C. & P. 418, R v. Jessop, 16 Coaj,
204. So, likewise, if several persons combine for an
unlawful purpose to be carried into effect by unlawful
means. See Fost. 351, 352 ; particularly, if it be to be
carried into effect notwithstanding any opposition that
may be offered against it; Fost. 353, 354; and one of
them, in the prosecution of it, kill a man, it is murder
in all who are present, whether they actually aid or
abet or not. (See the Sessinghurst-house case, 1 Hah,
461), provided the death were caused by the act of some one
of the party in the course of his endeavours to effect the
common object of the assembly. 1 Hawk. c. 31, s. 52 ; Fost.
352 ; R. v. Hodgson, 1 Leach, 6 ; R. v. Plv/mmer, Kel. 109.
But it is not sufficient that the common purpose is merely
unlawful; it must either be felonious, or, if it be to commit
a misdemeanor, then there must be evidence to show that
the parties engaged intended to carry it out at all hazards,
R. v. Sheet, 4 F. its F. 931. See also R. v. Luck, 3 F. & F.
483; R v. Craw, 8 Cox, 335, And the act must be the result
of the confederacy ; for, if several are out for the purpose ,
of committing a felony, and, upon alarm and pursuit, run
different ways, and one of them kill a pursuer to avoid
being taken, the others are not to be considered as princi-
pals in that offence. R. v. White, R. & R. 99. Thus, where
a gang of poachers, consisting of the prisoners and Wil-
liams, attacked a gamekeeper, beat him, and left him
senseless upon the ground, but Williams returned, and
whilst the gamekeeper was insensible upon the ground,
took from him his gun, pocket-book and money, Park, J.
held that this was robbery in Williams only. R. v. Hatu-
kins, 3 C. & P. 392, The purpose must also be unlawful;
ACCESSORIES, ETC. 11
for, if the original object be lawful, and be prosecuted by
lawful means, should one of the party in the prosecution
of it kill a man, although the party killing, and all those
who actually aid and abet him in the act, may, according
to circumstances, be guilty of murder or manslaughter,
yet the other persons who are present, and who do not
actually aid and abet, are not guilty as principals in the
second degree. — Fost. 354, 355 ; 2 Hawk. c. 29, s. 9.
A mere participation in the act, without a felonious,
participation in the design, will not be sufficient, 1 East,
P. C. 258; R. v. Plumrner, Kel. 109. Thus, if a master
assault another with malice prepense, and the servant
ignoraut of his master's felonious design, take part with
him, and kill the other, it is manslaughter in the servant,
and murder in the master. 1 Hale, 446. So, on an indict-
ment under the statute 1 V. c. 85, s. 2, charging A. with
the capital offence of inflicting a bodily injury dangerous
to life, with intent to commit murder, and B. with aiding
and abetting him, it was held to be essential, to make out
the charge as against B., that he should have been aware
of A's intention to commit murder. — R. v. Cruse, 8 C. &
P. 541.
In the case of murder by duelling, in strictness both of
the seconds are principals in the second degree ; yet Lord
Hale considers, that, as far as relates to the second of the
party killed, the rule of law in this respect has been too
far strained ; and he seems to doubt whether such second
should be deemed a principal in the second degree. 1 Hale,
452. However, in a late case it was holdeu by Pat-
. J., that all persons present at a prize-fight, having
gone thither with the purpose of seeing the prize-fighters
strike each other, were principals in the breach of the
peace. — R. v. Perkins, 4 C. & P. 537. See R. v. Murphy,
12 ACCESSORIES, ETC.
6 C. & P. 103, and R. v. Coney, 15 Cox, 46, and upon the
same principle, the seconds in a duel, being participators
in an unlawful act, would both be guilty of murder, if
death were to ensue ; and so the law was laid down in
R. v. Young, 8 C. & P. 644 ; and in R. v. Cuddy, 1 C.
& K. 210. If the principal was insane at the commission
of the act, no person can be convicted as an aider and
abettor of his act.— R. v. Tyler, 8 C. & P. 616.
Aiders and abettors were formerly defined to be accesso-
ries at the fact, and could not have been tried until the
principal had been convicted or outlawed. Fost. 347.
But this doctrine is exploded ; and it is now settled, that
all those who are present aiding and abetting when a
felony is committed are principals in the second degree*
and may be arraigned and tried before the principal in the
first degree has been found guilty; 2 Hale, 223; and may
be convicted, though the party charged as principal in
the first degree is acquitted. — R. v. Taylor, 1 Leach, 360 ;
Benson v. Offley, 2 Show. 510; 3 Mod. 121: R. v.
Wallis, Salk 334; E. v. Towle, R. & R. 314; 3 Price,
145 ; 2 Marsh. 465.
In treason, and in offences below felony, and in all
felonies in which the punishment of principals in the first
degree and of principals in the second degree is the same>
the indictment may charge all who are present and abet
the fact as principals in the first degree ; 2 Hawk. c. 25, s.
64 (see Mackally's case, 9 Co, 67 b), R, v, Rogers, 37 L.
J. (M. C.J 83, provided the offence permit of a participa-
tion ; Fost. 345 ; or specially as aiders and abettors. R,
v. Crisham, C. cfc Mar. 187. But where by particular sta-
tutes the punishment was different, then principals in the
second degree must have been indicted specially as aiders
and abettors, 1 East, P. C. 348, 350 ; R. v, Sterne, 1
ACCESSOBIES, ETC. 13
Leach, 473. If indicted as aiders and abettors, an indict-
ment charging that A. gave the mortal blow, and that B.,
C. and D. were present aiding and abetting, would be sus-
tained by evidence that B. gave the blow, and that A., C.
and D. were present aiding and abetting ; and even if it
appeared that the act was committed by a person not
named in the indictment, the aiders and abettors might nev-
ertheless be convicted. R. v. Borthwick, Doug. 207 ; 1
P. C. 350. See R. v. SicindaU, 2 C. <£ K. 230.
And the same, though the jury say that they are not
satisfied which gave the blow, if they are satisfied that one
of them did, and that the others were present aiding and
abetting. R. v. Downing, 1 Den. 52 ; 2 C. & K. 382.
Where a prisoner was convicted upon an indictment which
charged him with rape as a principal in the first count,
and as an aider and abettor in the second, it was holden
that the conviction upon the first count was good. R. v.
Folkes, 1 Mood. C. C. 354 ; R. v. Gray, 7 C. & P. 164. See
R. v. Crisham, R. v. Dovraing, supra. By Sec. 7, c.
. "whosoever shall aid, abet, counsel or procure
the commission of any misdemeanor, whether the same
be a misdemeanor at common law, or by virtue of any act
passed or to be passed, shall be liable to be tried, indicted
and punished as a principal offender." — R. v. Burton, 13
71.
Accessories before the fact. — An accessory before the
fact is he who, being absent at the time of the felony
committed, doth yet procure, counsel, command or abet
another to commit a felony. — 1 Hale, 615.
If the party be actually or constructively present when
the felony is committed, he is an aider and abettor, and
not an accessory before the fact ; for it is essential, to
constitute the offence of accessory, that the party should
14 ACCESSORIES, ETC.
be absent at the time the offence is committed. — 1 Hale,
615; R. v. Gordon, 1 Leach, 515; 1 East, P. C. 352,
R. v. Brown, 14 Cox, 144.
The procurement may be personal, or through the inter-
vention of a third person; Fost. 125; R. v. Earl of
Somerset, 19 St. Tr. 804 ; R. v. Cooper, 5 C. & P. 535 ;
it may also be direct, by hire, counsel, command, or con-
spiracy ; or indirect, by evincing an express liking, approba-
tion, or assent to another's felonious design of committing
a felony ; 2 Hawk. c. 29, s. 16 ; but the bare concealment
of a felony to be committed will not make the party con-
cealing it an accessory before the fact ; 2 Hawk. c. 29, s.
23 ; nor will tacit acquiescence, or words which amount to
a bare permission, be sufficient to constitute this offence.
1 Hale, 616. The procurement must be continuing; for
if the procurer of a felony repent, and before the felony is
committed, actually countermand his order, and the prin-
cipal notwithstanding commit the felony, the original con-
triver will not be an accessory. 1 Hale, 618. So, if the
accessory order or advise one crime, and the principal in-
tentionally commit another; as, for instance, to burn a
house, and instead of that he commit a larceny ; or, to
commit a crime against A., and instead of so doing he com-
mit the same crime against B. — the accessory will not be
answerable; 1 Hale, 617; but, if the principal commit the
same offence against B. by mistake, instead of A., it seems
it would be otherwise. Fost. 370, et seq. ; but see 1 Hale
617 ; 3 Inst. 51. But it is clear that the accessory is lia-
ble for all that ensues upon the execution of the unlaw-
ful act commanded ; as, for instance, if A. command B. to
beat C, and he beat him so that he dies, A. is accessory
to the murder. 4 Bl. Com. 37; 1 Hale, 617. Or if A.
command B. to burn the house of C, and in doing so the
ACCESSORIES, ETC. 15
house of D. is also burnt, A. is accessory to the burning
of D.'s house. B. v. Saunders, Plowd. 475. So, if the
offence commanded be effected, although by different means
from those commanded, as, for instance, if J. W. hire J.
S. to poison A., and, instead of poisoning him, he shoots
him, J. W. is, nevertheless, liable as accessory. Fost.
369, 370. Where the procurement is through an interme-
diate agent, it is not necessary that the accessory should
name the person to be procured to do the act. — B. v.
Cooper, 5 C. & P. 535.
Several persons may be convicted on a joint charge
against them as accessories before the fact to a particular
felony, though the only evidence against them is of sepa-
rate acts done by each at separate times and places. — B. v.
Barber, 1 C. & K. 44:2.
It may be necessary to observe, that it is only in felonies
that there can be accessories ; in high treason, every ins-
tance of incitement, etc., which in felony would make a
man an accessory before the fact, will make him a princi-
pal traitor. Fast. 341 ; and he must be iudicted as such,
1 Hale, 235. Also, all those who in felony would be acces-
sories before the fact, in offences under felony are princi-
pals, and indictable as such. 4 Bl. Com. 36 ; R. v. Clayton,
&K. 128; B. v. Mobnvl, 2 Mood. C. C. 276; B. v.
'Wood 2 Den. 453 ; Sec. 7, c. 145/>o-sr\ In manslaugh-
ter it has been said there can be no accessories before the
fact, for the offence is sudden and unpremeditated ; and
therefore, if A. be indicted for murder, andB. as accessory,
if the jury find A. guilty of manslaughter, they must ac-
quit B. 1 Hale, 437,466, 615 ; 1 Hawk. P. C., c. 30, s. 2.
"Where, however, the prisoner procured and gave a woman
poison in order that she might take it and so procure abor-
tion, and she did take it in his absence, and died of its
16 ACCESSORIES, ETC.
effects, it was held that he mightb e convicted as an acces-
sory before the fact to the crime of manslaughter. _R. v.
Gaylor, Dears. & B. 288. In the course of the argument
in that case, Bramivell, B., said: "Suppose a man for
mischief gives another a strong dose of medicine, not
intending any further injury than to cause him to be sick
and uncomfortable, and death ensues, wculd not that be
manslaughter? Suppose, then, that another had coun-
selled him to do it, would not he who counselled be an
accessory before the fact ?"
Formerly an accessory could not, without his own
consent, unless tried with the principal, be brought to trial
until the guilt of his principal had been legally ascertained
by conviction (1 Anne, st. 2, c. 9) or outlawry. Fost.
360; 1 Hale, 623. But now, whosoever shall counsel,
procure, or command any other person to commit any
felony, whether the same be a felony at common law, or
by virtue of any act passed or to be passed, shall be guilty
of felony, and may be indicted and convicted either as an
accessory before the fact to the principal felony, together
with the principal felon, or after the conviction of the
principal felon, or may be indicted and convicted of a
substantive felony, whether the principal felon shall or
shall not have been previously convicted, or shall or shall
not be amenable to justice, and may thereupon be punished
in the same manner as any accessory before the fact to the
same felony if convicted as an accessory may be punished
(Sec. 2, c. 145, post.). And " if any principal offender shall
be in anywise convicted of any felony, it shall be lawful to
proceed against any accessory, either before or after the
fact, in the same manner as if such principal felon had
been attainted thereof, notwithstanding such principal
felon shall die, or be pardoned, or otherwise delivered
before attainder ; and every such accessory shall upon
ACCESSORIES, ETC. 17
conviction suffer the same punishment as he would have
suffered if the principal had been attainted." (Sec. 6,
c. 1-45, post.) The 2nd section of this statute only applies
where the accessory might at common law have been
indicted with, or after the conviction of, the principal;
and, therefore, where a defendant was indicted as an
accessory before the fact to the murder of S. W., she
having by his procurement killed herself, it was holden
that a like statute did not apply. R. v. Russell, 1 Mood.
C. C. 356; R. v. Leddington, 9 C. & P. 79. But by the
1st section it is enacted, tbat " whosoever shall become an
accessory before the fact to any felony, whether the same
be a felony at common law or by virtue of any act passed
or to be passed, may be indicted, tried, convicted and
punished in all respects as if he were a principal felon ; "
so that the conviction of the principal is not now in any
sense a condition precedent to the conviction of the
accessory. R. v. Hughes, Bell, 242. In R. v. Chad
Stunord Sam. Ass. 1850, the prisoner was indicted as a
principal for murder by arsenic, and the jury found that
he procured the arsenic, and caused it to be administered
by another person, but was absent when it was adminis-
tered ; and thereupon it was objected that the 11 & 12
V., c. 46, s. 1, which is similar to the 24-25 V., c. 94,
8. 1, did not apply to murder, but Williams, J., overruled
the objection, and refused to reserve the point. Where
the principal and accessory are tried together, one being
charged as principal and the other as accessory (which will
now, probably, never occur), if the principal plead other-
wise than the general issue, the accessory shall not be
bound to answer until the principal's plea be first deter-
mined. 9 H. 7, c. 19; 1 Hale, 624; 2 Inst. 184. Where
the principal was indicted for burglary and larceny in
C
18 ACCESSORIES, ETC.
a dwelling-house, and the accessory was charged in the
same indictment as accessory before the fact to the said
"felony and burglary," and the jury acquitted the
principal of the burglary, but found him guilty of the
larceny; it seems the judges were of opinion that the
accessory should have been acquitted ; for the indictment
charged him as accessory to the burglary only, and the
principal being acquitted of that, the accessory should
have been acquitted also. R. v. Donnelly and Vaughan,
R. & R. 310 ; 2 Marsh. 571. Where three persons were
charged with a larceny, and two others as accessories, in
one count, and the latter were also charged separately in
other counts with substantive felonies, it was held that,
although the principals were acquitted, the accessories
might be convicted on the latter counts. R. v. Pulham,
9 C. & P. 280. And now by section 133 of the Procedure
Act, it is enacted, that i( any number of accessories
at different times to any felony, may be charged with
substantive felonies in the same indictment, and may be
tried together, notwithstanding the principal felon shall
not be included in the same indictment, or is not in
custody or amenable to justice.''
If a man be indicted as accessory in the same felony to
several persons, and be found accessory to one, it is a good
verdict, and judgment may be passed upon him. — R. v. (
Lord Sanchar, 9 Co. 189 ; Fost. 361 ; 1 Hale, 624.
Accessories after the fact.] — An accessory after the fact
is one who, knowing a felony to have been committed by
another, receives, relieves, comforts, or assists the felon.
1 Hale, 618; 4 Bl. Com. 37; 2 Hawk. c. 29, s. 1 ; 3 P.
Wms. 475. Any assistance given to one known to be a
felon, in order to hinder his apprehension, trial, or
punishment, is sufficient to make a man an accessory
ACCESSOEIES, ETC. 19
after the fact ; as, for instance, that he concealed him in
the house ; Bait. 530, 531 ; or shut the door against his
pursuers, until he should have an opportunity of escaping ;
1 Kale, 619 ; or took money from him to allow him to
escape ; 9 R. 4, pi. 1 ; or supplied him with money, a
horse, or other necessaries, in order to enable him to
escape ; Rale's Sum. 218 ; 2 Hawk. c. 29, s. 26 ; or that
the principal was in prison, and J. W. bribed the gaoler
to let him escape, or conveyed instruments to him to
enable him to break prison and escape. — 1 Hale, 621.
But merely suffering the principal to escape will not
make the party an accessory after the fact, for it amounts
at most but to a mere omission. 9 R. 4 pi. 1 ; 1 Rale,
619. So, if a person supply a felon in prison with
victuals or other necessaries for his sustenance ; 1 Rale,
620 ; or relieve and maintain him if he be bailed out of
prison ; Id. ; or if a physician or surgeon professionally
attend a felon sick or wounded, although he know him to
be a felon ; 1 Rale, 332 ; or if a person speak or write in
order to obtain a felon's pardon or deliverance ; 26 Ass.
47 ; or advise his friends to write to the witnesses not to
appear against him at his trial, and they write accordingly ;
.139; 1 Rale, 620; or even if he himself agree,
for money, not to give evidence against the felon; Moor,
8 ; or know of the felony and do not discover it ; 1 Rale,
371, 618 ; none of these acts would be sufficient to make
^the party an accessory after the fact. He must be proved
to have done some act to assist the felon personally. See
R. v. Chappie, 9 C. & P. 355. But if he employ another
person to do so, he will be equally guilty as if he
, harboured or relieved him himself. — R. v. Jarvis, 2 M.
<fc Rob. 40.
A wife is not punishable as accessory for receiving, etc.,
20 ACCESSORIES, ETC.
her husband, although she knew him to have committed
felony ; 1 Hale, 48, 621 ; R. v. Manning, 2 C. & K.
903, n. ; for she is presumed to act under his coercion.
But no other relation of persons can excuse the wilful
receipt or assistance of felons ; a father cannot assist his
child, a child his parent, a husband his wife, a brother his
brother, a master his servant, or a servant his master.
Id. Even one may make himself an accessory after the
fact to a larceny of his own goods, or to a robbery on
himself, by harboring the thief, or assisting in his escape.
Fost. 123 ; Cromp. 41 b. pi. 4 & 5. If the wife alone,
the husband being ignorant of it, receive any other person
being a felon, the wife is accessory, and not the husband.
1 Hale, 621. And if the husband and wife both receive
a felon knowingly, it shall be adjudged only the act of the
husband, and the wife shall be acquitted. — Id.
To constitute this offence, it is necessary that the
accessory have notice, direct or implied, at the time he
assists or comforts the felon, that he had committed a
felony. 2 Hawk. c. 29, s. 32. It is also necessary, that
the felony be completed at the time the assistance is given;
for, if one wound another mortally, and after the wound
given, but before death ensues, a person assist or receive
the delinquent, this does not make him accessory to the
homicide ; for until death ensues no murder or man-
slaughter is committed. — 2 Hawk. c. 29, s. 35 ; 4 BL
Com. 38.
In high treason there are no accessories after the fact,
those who in felony would be accessories after the fact
being principals in high treason ; yet in their progress to
conviction they must be treated as accessories, and indicted
specially for the receipt, etc., and not as principal traitors.
1 Hale, 238. So, in offences under felony there are no
ACCESSORIES, ETC. 21
accessories after the fact ; 1 Hale, 613 ; although, if the
act of the receiver amount to a rescue, or to obstructing
an officer of justice in the execution of his duty; or the
like, he would undoubtedly be indictable for it as for a
misdemeanor. 2 Hawk., c. 29, s. 4. Accessories after
the fact could not, until the stat. 11 & 12 V., c. 46, be
tried before the conviction of their principal, unless they
consented to it. 1 Hale, 623 ; 2 Hawk., c. 29, s. 45.
But they might be tried with their principal ; 1 Hale,
623 ; or separately, after the principal had been convicted ;
and having been once duly tried, they could not be again
indicted or tried for the same offence. (7 G. 4, c. 64,
8. 10.) And now, by Sec. 3, c. 145, post, whosoever
shall become an accessory after the fact to any felony,
whether the same be a felony at common law or by
virtue of any act passed or to be passed, may be indicted
and convicted either as an accessory after the fact to the
principal felony, together with the principal felon, or after
the conviction of the principal felon, or may be indicted
and convicted of a substantive felony, whether the prin-
cipal felon shall or shall not have been previously con-
victed, or shall or shall not be amenable to justice, and
may thereupon be punished in like manner as any acces-
sory after the fact to the same felony, if convicted as an
accessory, may be punished.
On an indictment charging a man as a principal felon
only, he cannot be convicted of the offence of being an
accessory after the fact. — R. v. Fallon, L. <£• C. 217.
The receipt of stolen goods did not at common law
constitute the receiver an accessory, but was a distinct
misdemeanor, punishable by fine and imprisonment ; 1
Hale, 620 ; and although, by several statutes, receivers
were made accessories after the fact, and, by the (repealed)
22
ACCESSORIES, ETC.
stat. 7 & 8 G. 4, c. 29, ss. 54, 55, 60, might in certain
cases be indicted either as accessories after the fact to
felony, or for a susbtantive felony, or might be prosecuted
for a misdemeanor, or punished upon summary conviction:
(see now sees. 136, 187, 138 of the Procedure Act :) yet
the receipt of stolen goods is still a distinct and separate
offence.
H
CHAPTER 145.
AN ACT EESPECTING ACCESSORIES.
(Imperial Act, 24-25 V., c. 94.)
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
FELONIES.
1. Every one who becomes an accessory before the fact to any
felony, whether the same is a felony at common law, or by virtue of
any Act, may be indicted, tried, convicted and punished in all respects
as if he were a principal felon.— 31 V., c. 69, s- 9, part, and c. 72, s. 1 ;
32-33 V., c. 20, s. 8, part, and c 21, s. 107, part. Sec. 1, Imp.
As to venue, see sec. 17, Procedure Act. As to joinder
of offenders, see sec. 133, Procedure Act.
Note by Greaves. — " This clause is taken from the II &
12 V., c. 46, s. 1, upon which it was held, that it was
no objection to an accessory before the fact being convicted
that his principal had been acquitted. Hall and Hughes
were jointly indicted for stealing certain cotton. Hall
was acquitted and called as a witness against Hughes ;
and it clearly appeared that Hall had stolen the cotton at
the instigation of Hughes, and in his absence. It was
contended, that as Hall had been acquitted, Hughes must
be so also ; for the statute had only altered the form of
pleading, and not the law, as to accessories before the fact ;
but it was held, that the statute had made the offence of
the accessory before the fact a substantive felony, and that
the old law, which made the conviction of the principal a
condition precedent to the conviction of the accessory, was
done away by that enactment. — R. v. Hughes, Bell, G. C-
242.
In every case where there may be a doubt whether a
24 ACCESSORIES, ETC.
person be a principal or accessory before the fact, it may
be advisable to prefer the indictment under this section, as
such an indictment will be sufficient, whether it turn out
on the evidence that such person was a principal or acces-
sory before the fact, as well as where it is clear that he
was either the one or the other, but it is uncertain which
he was.
It may be well to observe, however, that there are cases
in which it is not clear that an indictment under this
section would suffice. Suppose for instance that the
offence of the principal be local ; e. g., a burglary com-
mitted in the county of Worcester, and that the accessory
is indicted in the county of Stafford on the ground that the
evidence shows that the acts, by which he became accessory
were done in the latter county, it may be questionable
whether the accessory could be indicted and tried under
this section in that county; for it only authorises the
accessory to be indicted and tried " as if he were a
principal felon," and the principal could only be indicted
and tried in Worcestershire. Possibly if such an objection
were taken on the trial, it might be held that s. 7 of this
Act authorised the indictment and trial in Staffordshire on
the ground that the evidence showed the party to have
become an accessory before the fact in that county. But
supposing that to be so, the same question might be raised
in arrest of judgment or on error, and on the face of the
reoord all that would appear would be that the prisoner
was indicted and tried as a principal in Staffordshire for a
burglary committed in Worcestershire ; but even here it
might be held that the effect of the 11 & 12 V., c. 46,
s. 1, is to make every indictment which charges a person as
principal contain a charge of being accessory before the
fact also, and consequently that there was nothing on the
ACCESSORIES, ETC. 25
face of the record inconsistent with the facts having proved
that the prisoner was such an accessory in Staffordshire.
However, in any such case, it would be prudent to insert
a count framed under the next section.
In R. v. Chadwick, Stafford : Sum. Ass. 1850, MSS.,
C.S.G., the prisoner was indicted as a principal for murder
by arsenic, and the jury found that he procured the arsenic,
and caused it to be administered by another person but
was absent when it was administered ; and thereupon it
was objected that the 11 & 12 V., c. 46, s. 1, did not
apply to murder ; but Williams, J., overruled the objec-
tion. The learned Judge afterwards communicated the
decision to myself, and I pointed out that in the 7 Geo. 4,
c. 64, ss. 9, 10, 11 ; 4 Geo. 4, c. 48, s. 1 ; 7 & 8 Geo. 4, c. 28,
ss. 1, 2, 3, 5, 13 ; 4 & 5 V., c. 22, and other statutes, it was
manifest that M felony " included murder ; aud the learned
Judge having given the matter full consideration, refused
to reserve the point.
My Lord Hale in commenting on the jurisdiction of
Justices of the Pc;ace, says (2 Hale, 45) — " By the Statutes
of 18 Ed. 3, c. 2; 34 Ed. 3, c. 1 ; 17 Eich. 2, c. 10;
though they do only mention felonies, and do not express-
ly mention murders and manslaughters, and although the
Commission of the Peace mentions not murders by express
name, but only felonies generally, yet by these general
words, in these Statutes and this Commission, they have
power to hear and determine murders and manslaughters,
and thus it has been resolved, 5 Ed. 6, Dy. 69, a. ; Pref.
110 Co. Rep. against the opinion of Fitzherbert in his
Justice of Peace, and 9 Hen. 4, 24, Coron. 437." This
shows that the decision of Williams, J., was correct.
Mr. Archbold (Criminal Acts, 530) strongly objects to
this clause. After treating the rule in treason and ruisde-
26 ACCESSORIES, ETC.
meanors that all are principals as absurd, he says, " But
there is no reason why felonies should be involved in the
same absurdity. Supposing a man has been guilty, and
accused as accessory before the fact to a murder, and he is
then, according to the above section, indicted for having
committed murder, how are the jury, who are bound by
their oath to give their verdict according to the evidence,
to find a man guilty of the murder, when the evidence is
that he was not present at the murder — that he did not
aid or abet those who committed it, but had merely advised
it some months before ? " Now the answer to this is very
plain; the objection rests merely on a legal distinction,
which would never have entered into the head of any one
but a lawyer, and was not finally settled till Rex v. Birch-
enough, K. & M. C. C. E. 477 ; and there are old authori-
ties the other way in Stamforde, which were recognised by
Lord Hale, 1 Hale, 626 ; 2 Hale 224, and Foster, 361.
The distinction is this : that if A. procures B. to murder
C, and this murder is committed by B. in A's absence, A.
is guilty of murder if B. is an innocent agent, bat is only
an accessory before the fact if B. is a guilty agent. Now,
it is obvious that there is no more difficulty in a jury
understanding that they may convict A. of murder, where
B. is a guilty agent than where he is an innocent one. In
either case all they have to try is whether A. caused B. to
commit the murder. Juries are perfectly well able to
understand that he who causes a thing to be done by
another is just as much responsible as if he did that thing
himself — qui facit per alium facit per se — and there is
no more difficulty in satisfying them that a man ought to
be convicted of a murder who causes it to be done by
another in his absence, than in satisfying them that where
one man inflicts a mortal wound in the presence of another,
ACCESSORIES, ETC. 27
that wound is as much his wound as if he had inflicted it,
if they were both concurring in the act that caused it.
In both cases the jury must be satisfied that the act of the
killer was caused by the other, and the advantage of this
clause is, that it reduces the question for the jury to that
single issue, and gets rid of the difficulty, which often for-
merly arose, whether the evidence proved the prisoner to
be a principal or accessory before the fact. In all civil
cases, and in the ordinary affairs of life, he who causes an
act to be done, though he be absent when it is done, is
treated as having done that act, and the same has always
been the rule in treason and misdemeanor, and felony was
the only exception, which the 11 and 12 V., c. 46, s. 1,
very properly removed.
Mr. Archbold also says, p. 530, that in treason and mis-
demeanor all are principals, and "of course those who
advise treason or misdemeanor, and are not present when
it is committed, must necessarily be indicted as principals,
there is no other mode of indicting them." This is a mis-
take. It may be laid either way, viz., charging it as princi-
pal, or laying it special as it will appear by the evidence.
If one conspires the death of the Queen, and is committed
to prison for the same, and one procures him to escape or
harbours him after such a time as he knows him charged
with treason, or to have committed treason, you may
indict him upon the special matter, that A. committed
treason, that B. knew of it and received him. — B. v.
Tracy, 6 Mod. 30, per Holt C. J.
The mere fact of being stakeholder for a prize fight
where one of the combatants was killed does not make
one accessory before the fact to the manslaughter. — M. v.
Taylor, 13 Cox, 68.
28 ACCESSORIES, ETC.
!£. Every one who counsels, procures or commands any othet
person to commit any felony, whether the same is a felony at common
law, or by virtue of any Act, is guilty of felony, and may be indicted,
and convicted either as an accessory before the fact to the principal
felony, together with the principal felon, or after the conviction of
the principal felon, — or may be indicted and convicted of a substan-
tive felony, whether the principal felon has or has not been convicted,
or is or is not amenable to justice, — and may thereupon be punished
in the same manner as any accessory before the fact to the same
felony, if convicted a* an accessory, may be punished. — 31 V., c. 72,
s. 2. Sec. 2, Imp.
Note by Greaves. — " The prosecutor may at his option
prefer an indictment under this or the preceding section,
and we have shown in the last note (under sec. 1, ante.)
that there are cases in which it may be advisable to prefer
an indictment under this section."
Notwithstanding this section, the soliciting and inciting
a person to commit a felony, where no felony is in fact
committed by the person so solicited, still remains a mis-
demeanor only. — R. v. Gregory, L. R., 1 C. C. R. 77.
3. In every felony, every principal in the second degree shall be
punishable in the same manner as the principal in the first degree is
punishable.— 31 V., c. 69, s. 9, part, and c. 72, s. 3 ; 32-33 V., c. 21,
s. 107, part.
4> Every one who becomes an accessory after the fact to any
felony, whether the same is a felony at common law or by virtue of
any Act, may be indicted and convicted, either as an accessory after
the fact to the principal felony, together with the principal felon, or
after the conviction of the principal felon, or may be indicted and
convicted of a substantive felony, whether the principal felon has or
has not been convicted, or is or is not amenable to justice, and may
thereupon be punished in like manner as any accessory after the fact
to the same felony, if convicted as an accessory, may be punished.
—31 V., c 72, s. 4 ; 32-33 V., c 20, s. 8, part. Sec. 3, Imp.
See sees. 136 and 138 of the Procedure Act.
As to venue, sec. 17 of Procedure Act.
ACCESSORIES, ETC. 29
Four prisoners were indicted for murder jointly with
two others indicted as accessories after the fact. The
prisoners indicted for murder were found guilty of
manslaughter, and the other two guilty of having been
accessories after the fact to manslaughter. Held, on
motion in arrest of judgment, that the conviction against
the accessories was right. — jR. v. Richards, 13 Cox, 611.
See R. v. Brannon, 14 Cox, 394.
5. Every accessory after the fact to any felony (except when it is
otherwise specially enacted), whether the same is a felony at com-
mon law, or by virtue of any Act, shall be liable to imprisonment for
any term less than two years. — 31 F, c. 69, s. 9, part, and c. 72, s.5,
part; 32-33 F, c. 19, s. 57, part. Sec. 4, Imp.
6. If any principal offender is, in any wise, convicted of any felony,
any accessory, either before or after the fact, may be proceeded
against in the same manner as if such principal felon had been
attainted thereof, notwithstanding such principal felon dies or is
pardoned or otherwise delivered before such attainder ; and every
such accessory shall, upon conviction, suffer the same punishment
as he would have suffered if the principal had been attainted. — 31
F, c 72, s. 6 ; 32-33 F, c. 20, s. 8, part. Sec. 5, Imp.
MISDEMEANORS.
7. Every one who aids, abets, counsels or procures the commission
of any misdemeanor, whether the same is a misdemeanor at common
law, or by virtue of any Act, is guilty of a misdemeanor and liable to
be tried, indicted and punished as a principal offender — 31 F, c. 72,
*. 9 ; 32-33 F, c. 19, s. 57, part, and c. 21, s. 107, part ; 35 V '., c. 32,
*. 13 ; 40 F, c. 32, s. 1, part. Sec. 8, Imp. R. v. Burton, 13 Cox, 71.
OFFENCES PUNISHABLE ON SUMMARY CONVICTION.
8. Even* one who aids, abets, counsels or procures the commission
of any offence punishable on summary conviction, either for every
time of its commission, or for the first and second time only, or for
the first time only, shall, on conviction, be liable for every first,
second or subsequent offence, of aiding, abetting, counselling or pro-
curing, to the same forfeiture and punishment to which a person
guilty of a first, second or subsequent offence as a principal offender,
is liable.— 32-33 F, c. 21, s. 108, and c. 22, s. 70, and c. 31, s. 15,
part ; 33 F, c 31, s. 5, part.
CHAPTER 146.
(11-12 V., o. 12, Imp.)
AN ACT RESPECTING TREASON AND OTHER OF-
FENCES AGAINST THE QUEEN'S AUTHORITY.
HER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
1. Every one who compasses, imagines, invents, devises, or in-
tends death or destruction, or any bodily harm, tending to death or
destruction, maiming or wounding, imprisonment or restraint of our
Sovereign Lady the Queen, Her Heirs or Successors, and expresses,
utters or declares such compassings, imaginations, inventions, devices
or intentions, or any of them, by publishing any printing or writing,
or by any overt act or deed, is guilty of treason and shall suffer death.
31 V., c. 69, s. 2 ; 32-33 V., c. 17, s. 1.
2. Every officer or soldier in Her Majesty's army, who holds cor-
respondence with any rebel, or enemy of Her Majesty, or gives him
advice or intelligence, either by letters, messages, signs or tokens, or
in any manner or way whatsoever, or treats with such rebel or enemy,
or enters into any condition with him without Her Majesty's license,
or the license of the general, lieutenant general or chief commander,
is guilty of treason and shall suffer death. — 31 V., c 69, s. 3.
3. Every one who compasses, imagines, invents, devises or intends
to deprive or depose Our Sovereign Lady the Queen, Her Heirs or
Successors, from the style, honor or royal name of the imperial crown
of the United Kingdom, or of any other of Her Majesty's dominions
or countries, — or to levy war against Her Majesty, Her Heirs or
Successors, within any part of the United Kingdom or of Canada, in
order, by force or constraint, to compel her or them to change her
or their measures or counsels, or in order to put any force or con-
straint upon, or in order to intimidate or overawe both Houses or
either House of Parliament, of the United Kingdom or of Canada,
or to move or stir any foreigner or stranger with force to invade the
United Kingdom or Canada, or any other of Her Majesty's domi-
nions or countries under the obeisance of Her Majesty, Her Heirs or
Successors, and expresses, utters or declares such compassings, im-
aginations, inventions, devices or intentions, or any of them, by pub-
TREASON, ETC. 31
jishing any printing or writing, or by open and alvised speaking, or
bv any overt act or deed, is guilty of felony, and liable to imprison-
ment "for life.— 31 V., c 69, s. 5 ; 32-33 F., c. 17, s. 1.
4, Every one who confederates, combines or conspires with any
person to do any act of violence, in order to intimidate, or to put any
force or constraint upon any Legislative Council, Legislative Assem-
bly or House of Assembly in any Province of Canada, is guilty of
felony, and liable to fourteen years' imprisonment. — 31 F-, c. 71, s. 5.
o. No person shall be prosecuted for any felony by virtue of this
Act in respect of such compassings, imaginations, inventions, de-
vices or intentions as aforesaid, in so far as the same are expressed,
uttered, or declared by open and advised speaking only, unless infor-
mation of such compassings, imaginations, inventions, devices and
i .tentions and of the words by which the same were expressed, utter-
el or declared, is given upon oath to one or more justices of the peace,
within six days after such words are spoken, and unless a warrant,
fjr the apprehension of the person by whom such words were spoken
is issued within ten days next after such information is given as afore-
said ; and no person shall be convicted of any such compassings,
i nagination«, inventions, devices or intentions as aforesaid, in so
far as the same are expressed, uttered or declared by open or
alvised speaking as aforesaid, except upon his own confession
in open court, or unless the words so spoken are proved by two
credible witnesses. — 31 F., c 69, *. 6.
6. If any person, being a citizen or subject of any foreign ate
or country at peace with Her Majesty, is or contiuues in arms
azainst Her Majesty, within Canada, or commits any act of hostil-
ity therein, or enters Canada with design or intent to levy war
against Her Majesty, or to commit any felony therein, for which any
person would, in Canada, be liable to suffer death, the Governor Gen-
eral may order the assembling of a militia general court martial for
the trial of such person, under " The Militia Act ; " and upon being
found guilty by such court martial of offending against the provisions
of this section, such person shall be sentenced by such court martial
to suffer death, or such other punishment as the court awards. — 31 F,
c. 14, *. 2.
7. Every subject of Her Majesty, within Canada, who levies war
against Her Majesty, in company with any of the subjects or citizens
of any foreign state or country then at peace with Her Majesty, or
enters Canada in company with any such subjects or citizens with
32 TREASON, ETC.
intent to levy war on Her Majesty, or to commit any such act of fel-
ony as aforesaid, or who, with the design or intent to aid and assist,
joins himself to any person or persons whomsoever, whether subjects
or aliens, who have entered Canada with design or intent to levy war
on Her Majesty, or to commit any such felony within the same, may
be tried and punished by a militia court martial, in the same man-
ner as any citizen or subject of a foreign state or country, at peace
with Her Majesty, may be tried and punished under the next pre-
ceding section. — 31 V., c. 14, s. 3.
8. Every subject of Her Majesty, and every citizen or subject of
any foreign state or country, who offends against the provisions of the
two sections next preceding, is guilty of felony, and may, notwith-
standing the provisions hereinbefore contained, be prosecuted and
tried in any county or district of the Province in which such offence
was committed, before any court of competent jurisdiction, in the
same manner as if the offence had been committed in such county
or district, and, upon conviction, shall surfer death as a felon. — 31 V.,
c 14, s. 4.
9. Nothing herein contained shall lessen the force of or in any
manner affect anything enacted by the statute passed in the twenty-
fifth year of the reign of His Majesty King Edward the Third, inti-
tuled " A declaration which offences shall be adjudged treason." — 31
V., c. 69, s. 1.
See Archbold, 779 ; Stephen's Crim. L„ 32 ; Sir John
Kelyng's Crown cases, p. 7 — and a treatise on treason,
printed therein : Foster's Cr. Law, discourse on high
Treason, 183.
Also, K. v. Gallagher, 15 Cox, 291 ; R. v. Deasy, 15
Cox, 334, for prosecutions under the Imperial Act. Sees.
106, 186 and 187 of the Procedure Act, are applicable to
trials for offences under this Act ; also, sees. 3 and 4 as to
jurisdiction.
CHAPTER 147.
AX ACT RESPECTING "RIOTS, UNLAWFUL ASSEM-
BLIES AND BREACHES OF THE PEACE.
H
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
1. Every sheriff, deputy sheriff, mayor or other head officer, and
justice of the peace, of any county, city or town, who has notice that
there are within his jurisdiction persons to the number of twelve or
more unlawfully, riotously and tumultuously assembled together to
the disturbance of the public peace, shall resort to the place where
Buch unlawful, riotous and tumultuous assembly is, and among the
rioters, or as near to them as he can safely come, with a loud voice,
command, or cause to be commanded, silence, and, after that, openly
and with loud voice, make or cause to be made a proclamation in
these words, or to the like effect : —
u Our Sovereign Lady the Queen charges and commandsall persons
~" being assembled immediately to disperse and peaceably to depart
" to their habitations or to their lawful business, upon the pain of
* being guilty of an offence, on conviction of which they may be
" sentenced to imprisonment for life.
" God Save the Qceex."
31 V., c. 70, *. I, part, and ss. 2 and 3.
2. All persons who, —
(a.) With force and arms willfully oppose, hinder or hurt any
person who begins or is about to make the said proclamation, whereby
such proclamation is not made, or —
(6.) Continue together to the number of twelve, for one hour after
such proclamation has been made, or if they know that its making
was hindered as aforesaid, continue together and do not disperse
themselves within one hour after such hindrance, —
Are guilty of felony and liable to imprisonment for life.
2. No person shall be prosecuted for any offence under this section
unless such prosecution is commenced within twelve months after the
offence is committed. — 31 F., c. 70, ss. \,part, 6, 7 and 8.
3. If the persons so unlawfully, riotously and tumultuously
assembled together as aforesaid, or twelve or more of them, continue
34 RIOTS, ETC.
together, and do not disperse themselves, for the space of one hour
after the proclamation is made, or after such hindrance as aforesaid,
every such sheriff, mayor, justice and other officer as aforesaid, and
every constable or other peace officer, and all persons required by them
to assbt, shall cause such persons to be apprehended and carried before
a justice of the peace ; and if any of the persons so assembled is killed
or hurt, in the apprehension of such persons or in the endeavor to
apprehend or disperse them, by reason of their resistance, every
person ordering them to be apprehended or dispersed, and every
person executing such orders, shall be indemnified against all pro-
ceedings of every kind in respect thereof. — 31 V., c. 70, ss. 4 and 5.
4. All meetings and assemblies of persons for the purpose of
training or drilling themselves, or of being trained or drilled to the
use of arms or for the purpose of practising military exercises, move-
ments or evolutions, without lawful authority for so doing, are
unlawful and prohibited. — 31 V., c. 15, s. I, part.
5. Every one who is present at or attends any such meeting or
assembly, for the purpose of training any other person or persons to
the use of arms or to the practice of military exercises, movements or
evolutions, or who, without lawful authority for so doing, trains or
drills any other person or persons to the use of arms, or to the prac-
tice of military exercises, movements or evolutions, or who aids or
assists therein, is guilty of a misdemeanor, and liable to two years'
imprisonment. — 31 V., c. 15, s. \,pa.rt.
6. Every one who attends or is present at any such meeting or
assembly, for the purpose of being, or who, at any such meeting or
assembly, is trained or drilled to the use of arms, or to the practice
of military exercises, movements or evolutions, is guilty of a mis-
demeanor and liable to two years' imprisonment. — 31 V.t c. 15, s. 1,
pari.
7. Any justice of the peace, constable or peace officer, or any person
acting in his aid or assistance, may disperse any such unlawful meet-
ing or assembly as in the three sections next preceding mentioned,
and may arrest and detain any person present at or aiding, assisting
or abetting any such assembly or meeting as aforesaid ; and the
justice of the peace who arrests any such person or before whom any
person so arrested is brought, may commit such person for trial for
such offence, unless such person gives bail for his appearance at the
next court of competent jurisdiction, to answer to any indictment
which is preferred against him for any such offence. — 31 V., c. 15,
8.2.
RIOTS, ETC. 35
8. No one shall be prosecuted for any offence under the four
sections next preceding, unless such prosecution is commenced within
six months after the offence is committed. — 31 V., c. 15, s. 9.
9. All persons who, being riotously and tumult uously assembled
together to the disturbance of the public peace, unlawfully and with
force demolish, pull down or destroy or begin to demolish, pull down
or destroy, any church, chapel, meeting-house or other place of divine
worship, or any house, stable, coach-house, out-house, warehouse,
office, shop, mill, malt-house, hop-oast, barn, granary, shed, hovel or
fold, or any building or erection used in farming land, or in carrying on
any trade or manufacture, or any branch thereof, — or any building
other than such as are in this section before mentioned, belonging to
Her Majesty, or to any county, municipality, riding, city, t'>wn,
village, parish or place, or to any university or college or hall of
any university, or to any corporation, or to any unincorporated body
or society or persons associated jor any lawful purpose, or devoted
or dedicated to public use or ornament, or erected or maintained by
public subscription or contribution, — or any machinery, whether
fixed or movable, prepared for or employed in any manufacture or
in any branch thereof, — or any steam engine or other engine for
sinking, working, ventilating or draining any mine, or any staith,
building or erection used in conducting the business of any mine,
or any bridge, wagon-way or track for conveying minerals, from any
mine, are guilty of felony, and liable to imprisonment for life. — 32-33
V., c. 22, s. 15; 24-25 V., c. 97, s. 11, Imp.
10. All persons who, being riotously and tumultuously assembled
together to the disturbance of the public peace, unlawfully ami with
force injure or damage any such church, chapel, meeting-house, place
of divine worship, house, stable, coach-house, out-house, warehouse,
office, shop, mill, malt-house, hop-oast, barn, granary, shed, hovel,
fold, building, erection, machinery, engine, staith, bridge, wagon-way
or track, as in the next preceding section mentioned, are guilty of a
misdemeanor, and liable to seven years' imprisonment. — 32-33 V., c.
22, s. 16, part ; R. S. Y. S. (3rd k), c 162, s. 6 ; 24-25 V., c. 97,
*. 12, Imp.
11. Three or more persons who, having assembled, continue toge-
ther with intent unlawfully to execute any common purpose with
force and violence, or in a manner calculated to create terror and
alarm, are guilty of an unlawful assembly, and liable to two years'
imprisonment.— R. S. N. S. {3rd S.), c. 162, s. 5 ; 1 R. S. N. B.,
c. 147, s. 6.
36 RIOTS, ETC.
12. Three or more persons who, having assembled, continue toge-
ther with intent unlawfully to execute any common purpose with
force and violence, or in any manner calculated to create terror and
alarm, and who endeavor to execute such purpose, are although such
purpose is not executed, guilty of a rout, and liable to three years'
imprisonment. — 1 R. S. N. B., c. 147, s. 7.
13. Three or more persons who, having assembled, continue
together with intent unlawfully to execute any common purpose with
force and violence, and who, wholly or in part, execute such purpose
in a manner calculated to create terror and alarm, are guilty of a
riot, and liable to four years' imprisonment. — 1 R. S. N. B., c 147,
s. 8.
14. Two or more persons who fight together in a public place, in
a manner calculated to create terror and alarm, are guilty of an
affray, and liable, on summary conviction, to three months' imprison-
ment. R. S. N. S. (3rd &), c. 162, s. 7 ; 1 R. S. N. B„ c. 147, s. 9.
Sees. 1, 2, 3 are from the I Geo. 1, st. 2, c. 5. See
Archbold, 902.
Sees. 4, 5, 6, 7, 8 are from 60 Geo. 3, — I Geo. 4, c. 1.
Sees. 11, 12, 13, 14 are enactments from Nova Scotia
and New Brunswick, extended to all the Dominion on
unlawful assemblies, routs, riots and affrays.
The words in italics in sec. 9 are not in the Imperial
Act.
Indictment under Sect. 9. — That on at
J. S., J. W. and E. W., together with divers other evil-dis-
posed persons, to the jurors aforesaid unknown, unlaw-
fully, riotously and tumultuously did assemble together, to
the disturbance of the public peace; and being then and
there so unlawfully, riotously and tumultuously assembled
together as aforesaid, did then and there feloniously, un-
lawfully and with force begin to demolish and pull down
the dwelling-house of one J. N., there situate, against the
form
Local description necessary in the body of the indict-
ment.— R. v. Richards, 1 M . & Rob. 177.
RIOTS, ETC. 37
By sec. 206 of the Procedure Act, it is enacted that if
upon the trial of any person, for any felony mentioned in the
ninth section of " Act respecting riots, unlawful assem-
blies, and breaches of the peace," the jury is not satisfied
that such person is guilty thereof, but is satisfied that he
is guilty of any offence mentioned in the tenth section of
such Act, they may find him guilty thereof, and he may
be punished accordingly. — 32-33 V., c. 22, s. 16, part;
24-25 V., c. 97, s. 11 and 12, Imp.
Indictment under Sect. 10. — That on at
S., J. W. and E. W., together with divers other evil-
disposed persons, to the said jurors unknown, unlawfully,
riotously, and tumultuously did assemble together to the
disturbance of the public peace, and being then and there
so unlawfully, riotously and tumultuously assembled toge-
ther as aforesaid, did then and there unlawfully and with
force injure a certain dwelling-house of one J. N„ there
situate, against the form Add a count stating dam-
age instead of injure.
Local descriptions necessary as under sec. 9.
The riotous character of the assembly must be proved,
It must be proved that these three or more, but not less
than three, persons assembled together, and that their
assembling was accompanied with some such circum-
stances, either of actual force or violence, or at least of an
apparent tendency thereto, as were calculated to inspire
people with terror, such as being armed, using threatening
speeches, turbulent gestures, or the like. It is a sufficient
terror and alarm, if any one of the Queen's subjects be in
fact terrified. — Archbold, 842. Then prove that the assem-
bly began with force to demolish the house in question. It
must appear that they began to demolish some part of the
freehold ; for instance, the demolition of moveable shutters
38 RIOTS, ETC.
is not sufficient.— E. v. Howell, 9 C. & P. 437. A demo-
lition by fire is within the Statute. Prove that the defen-
dants were either active in demolishing the house, or
present, aiding aud abetting. To convict under sect. 9,
the jury must be satisfied that the ultimate object of the
rioters was to demolish the house, and that if they had
carried their intention into effect, they would in point of
fact have demolished it ; for if the rioters merely do an
injury to the house, and then of their own accord go
away as having completed their purpose it is not a
beginning to demolish within this section. But a total
demolition is not necessary, though the parties were not
interrupted, and the fact that the rioters left a chimney
remaining will not prevent the Statute from applying. —
Archbold. But if the demolishing or intent to demolish be
not proved, and evidence of riot and injury or damage to
the building is produced, the jury may find the defendant
guilty of the misdemeanor created by sect. 10, by the
proviso contained in the aforesaid sect. 206 of the Proce-
dure Act.
Divers persons assembled in a room, entrance money
being paid, to witness a fight between two persons. The
combatants fought in a ring with gloves, each being attended
by a second, who acted in the same way as the second at
prize fights. The combatants fought for about 40 minute
with great ferocity, and severely punished each other. The
police interfered and arrested the defendants, who were
among the spectators.
Upon the trial of an indictment against them for
unlawfully assembling together for the purpose of a prize
fight, the Chairman directed the jury that, if it was a mere
exhibition of skill in sparring, it was not illegal ; but, if
the parties met intending to fight till one gave in from
RIOTS, ETC. 39
exhaustion or injury received, it was a breach of the law
and a prize fight, whether the combatants fought in gloves
or not, and left it to the jury to say whether it was a prize
fight or not.
Held, that the jury were properly directed. — R. v.
Orton, 14 Cox, 226. SeeR. v.McXaughton, 14 Cox, 576.
The appellants with a considerable number of other per-
sons, forming a body called " Salvation Army, " assembled
together in the streets of a town for a lawful object, and
with no intention of carrying out their object unlawfully,
or by the use of physical force, but knowing that their
assembly would be opposed and resisted by other persons,
in such a way as would in all probability tend to the
committing of a breach of peace on the part of such oppo-
sing persons. A disturbance of the peace having been
created by the forcible opposition of a number of persons
to the assembly and procession through the streets of the
appellants and the Salvation Army, who themselves used
no force or violence, it was —
Held, by Field and Cave, J. J. (reversing the decision of
.the justices), that the appellants had not been guilty of
" unlawfully and tumultuously assembling," etc., and
could not therefore be convicted of that offence, nor be
bound over to keep the peace.
Held, also, that knowledge by persons peaceably assem-
bling for a lawful object, that their assembly will be for-
cibly opposed by other persons, under circumstances likely
to lead to a breach of the peace on the part of such other
persons, does not render such assembly unlawful. — Beatty
v. Gdlbanhs, 15 Cox, 138.
A procession being attacked by rioters a person in it
fired a pistol twice. He appeared to be acting alone and
nobody was injured.
40 RIOTS, ETC.
Held, that he could not be indicted for riot, and, on a
case reserved, a conviction on such an indictemeut was
quashed.— R. v. Corcoran, 26 U. C. 0. P. 134.
On the trial of an indictment for riot and unlawful
assembly on the 15th Jan., evidence was given on the part
of the prosecution of the conduct of the prisoners on the
day previous, for the purpose of showing (as was alleged)
that B., in whose office one act of riot was committed, had
reason to be alarmed when the prisoners came to his office.
The prisoner's counsel thereupon claimed the right to show
that they had met on the 14th to attend a school meeting,
and to give evidence of what took place at the school meet-
ing, but the evidence was rejected.
Held, per Allen, C. J., and Fisher and Duff, J. J., Weldon
and Wetmore, J. J., dis., that the evidence was properly
rejected because the conduct of the prisoners on the 14th
could not qualify or explain their conduct on the follow-
ing day.
It is no ground for quashing a conviction for unlawful
assembly on one day that evidence of an unlawful assem-
bly on another day has been improperly received, if the
latter charge was abandoned by the prosecuting counsel at
the close of the case, and there was ample evidence to
sustain the conviction.
If a man knowingly does acts which are unlawful, the
presumption of law is that the mens rea exists ; ignorance
of the law will not excuse him. — The Queen v. Mailloux,
3 Pugs. (N. B.J 493.
H
CHzVPTER 154.
AN ACT RESPECTING PERJURY.
ER Majesty, brand with the advice and consent of the Senate
and House of Commons of Canada, enacts as follow- : —
1. Every one who commits perjury or subornation of perjury is
guilty of a misdemeanor, and liable to a fine in the discretion of the
court and to fourteen years' imprisonment. — 32-33 V., c. 23, s. 1.
2. Every one who, —
(a.) Having taken any oath, affirmation, declaration or affidavit in
any case in which by any Act or law in force in Canada, or in any
Province of Canada, it is required or authorized that facts, matters or
things be verified, or otherwise assured or ascertained, by or upon the
oath, affirmation, declaration or affidavit of any person, wilfully and
corruptly, upon such oath, affirmation, declaration or affidavit,
deposes, swears to or makes any false statement as to any such fact,
matter or thing, —
(o) Knowingly, wilfully and corruptly, upon oath or affirmation,
affirms, declares, or deposes to the truth of any statement for so veri-
fying, assuring or ascertaining any such fact, matter or thing, or pur-
porting so to do, or knowingly, wilfully and corruptly takes, makes,
signs or subscribes any such affirmation, declaration or affidavit, as to
any such fact, matter or thing, — such statement, affidavit, affirmation
or declaration being untrue, in the whole or any part thereof, or —
(c.) Knowingly, wilfully and corruptly omits from any such affida-
vit, affirmation or declaration, sworn or made under the provisions of
any law, any matter which, by the provisions of such law, is required
to be stated in such affidavit, affirmation or declaration, —
Is guilty of wilful and corrupt perjury, and liable to be punished
accordingly :
2. Provided, that nothing herein contained shall affect any ca-e
amounting to perjury at common law, or the case of any offence in
respect of which other or special provision is made by any Act. — 32-33
V., c. 23, s. 2.
3. Every person who wilfully and corruptly makes any false affi-
davit, affirmation or declaration, out of the Province in which it is
to be used, but within Canada, before any functionary authorized to
42 PERJURY.
take the same for the purpose of being used in any Province of Can-
ada, shall be deemed guilty of perjury, in like manner as if such false
affidavit, affirmation or declaration bad been made in the Province in
which it is used, or intended to be used, before a competent authority.
—33 V.,c. 26,*. I, part.
4. Any judge of any court of record, or any commissioner, before
whom any inquiry or trial is held, and which he is by law required or
authorized to hold, may, if it appears to him that any person has been
guilty of wilful and corrupt perjury in any evidence given, or in any
affidavit, affirmation, declaration, deposition, examination, answer or
other proceeding made or taken before him, direct such person to be
prosecuted for such perjury, if there appears to such judge or commis-
sioner a reasonable cause for such prosecution, — and may commit
such person so directed to be prosecuted until the next term, sittings,
or session of any court having power to try for perjury, in the juris-
diction within which such perjury was committed, or permit such
person to enter into a recognizance, with one or more sufficient sure-
ties, conditioned for the appearance of such person at such next term,
sittings or session, and that he will then surrender and take his trial
and not depart the court without leave, — and may require any person
such judge or commissioner thinks fit, to enter into a recognizance
conditioned to prosecute or give evidence against such person so
directed to be prosecuted as aforesaid. — 32-33 V., c. 23, s. 6.
5. All evidence and proof whatsoever, whether given or made orally
or by or in any affidavit, affirmation, declaration, examination or
deposition, shall be deemed and taken to be material with respect to
the liability of any person to be proceeded against and punished for
wilful and corrupt perjury or for subornation of perjury.— 32-33 V.,
c 23, s. 7.
Perjury, by the common law, appears to be a wilful false
oath by one who, being lawfully required to depose the
truth in any proceeding in a " court " of justice, swears
absolutely in a matter of some consequence to the point in
question, whether he be believed or not. 3 Russell, 1.
Hawkins, Vol. 1, p. 429, has the word " course " of
justice, instead of " court" of justice.
Bishop, Cr. Law, Vol. 2, 1015, says a "course" of
justice, and thinks that the word " court " in Russell is a
PERJURY. 43
misprint for "course." Though Bacon's abridgement,
verb: perjury, also has " court." Eoscoe, 747, has also
" court" of justice, but says the proceedings are not con-
fined to courts of justice ; and a note by the editor of the
American sixth edition says a " course "of justice is a more
accurate expression than a "court" of justice.
There is no doubt, however, that, according to all the
definitions of this offence, by the common law, the party
must be lawfully sworn, the proceeding in which the oath
is taken must relate to the administration of justice, the
assertion sworn to must be false, the intention to swear
falsely must be wilful, and the falsehood material to the
matter in question. Promissory oaths, such as those taken
by officers for the faithful performance of duties, cannot be
the subject of perjury. — Cr. L. Comrs., 5th Report, 51.
False swearing, under a variety of circumstances, has
been declared by numerous Statutes to amount to perjury,
and to be punishable as such. But at common law, false
swearing was very different from perjury. The offence of
pei jury, at the common law, is of a very peculiar descrip-
tion, say the Cr. L. Comrs-, oth Rep. 23, and differs in
some of its essential qualities from the crime of false testi-
mony, or false swearing, as defined in all the modern Codes
of Europe. The definition of the word, too, in its popular
acceptation, by no means denotes its legal signification.
Perjury, by the common law, is the assertion of a falsehood
upon oath in a judicial proceeding, respecting some fact
material to the point to be decided in such proceeding ;
and the characteristic of the offence is not the violation of
the religious obligation of an oath, but the injury done
to the administration of public justice by false testimony.
Here, in Canada, the above Statute declares to be per-
jury all oaths, &c, taken or subscribed in virtue of any law,
44 PERJURY.
or required or authorized by any such law ; and voluntary
and extra-judicial oaths being prohibited by c. 141,
Eev. Stat., it may perhaps be said that, with us, every false
oath, knowingly, ivilfully and corruptly taken amounts
to perjury, and is punishable as such. The interpretation
Act, c. 1, Rev. Stat., enacts moreover that the word
" oath " includes a solemn affirmation whenever the context
applies to any person and case by whom and in which a
solemn affirmation may be made instead of an oath, and in
like cases the word sworn shall include the word affirmed
or declared.
Sect. 5 supra is an important alteration of the law on
perjury as it stands in England. As stated before, by the
Common Law, to constitute perjury, the false swearing
must be, besides the other requisites, in a matter mate-
rial to the point in question. The above section may be
said to have abolished this necessary ingredient of per-
jury.
See R. v. Eoss, I. M. L. E. Q. B., 227.
See Stephen's Digest of Criminal Law, XXXIII.
This clause 5 of our Perjury Act has been taken from
clause 272 of the Criminal Laws of Victoria, Australia.
As our law now stands, perjury may be defined a false
oath, knowingly, wilfully and corruptly given by one, in
some judicial proceeding, or on some other occasion where
an oath is imposed, required, or sanctioned by law.
1st. There must be a lawful oath. R. v. Gibson, 7 R. L.
574 ; R. v. Martin, 21 L. G. J., 156, 7 R. L. 772 ; R. v.
Lloyd, 16 Gox, 235, And, therefore, it must be taken before
a competent jurisdiction, or before an officer who had legal
jurisdiction to administer the particular oath in question.
And though it is sufficient primd facie to show the osten-
sible capacity in which the judge or officer acted when the
PERJURY. 45
oath was taken, the presumption may be rebutted by-
other evidence, and the defendant, if he succeed, will be
entitled to an acquittal. — 2 Chitty, 304; Archbold, 815.
— R. v. Roberts, 14 Cox, 101 ; R. v. Hughes, 14 Cox, 284.
2nd. — The oath must be false. By this, it is intended
that the party must believe that what he is swearing is
fictitious ; for, it is said, that if, intending to deceive, he
asserts of his own knowledge that which may happen to
be true, without any knowledge of the fact, he is equally
criminal, and the accidental truth of his evidence will not
excuse him. — 2 Chitty, 303. Bishop's first book of the
law, 117. And a man may be indicted for perjury, in
swearing that he believes a fact to be true, which he must
know to be false. — R. v. Pedley, 1 Leach, 327.
3rd. The false oath must be knowingly, v:ilf idly, and
corruptly taken. The oath must be taken and the false-
hood asserted with daliberation and a consciousness of the
nature of the statement made, for if it seems rather to
have been occasioned by inadvertency or surprise, or a
mistake in the import of the question, the party will not
be subjected to those penalties wilich a corrupt motive
alone can deserve. — 2 Chitty, 303. If an oath is false to
the knowledge of the party giving it, it is, in law, wilful
and corrupt. — 2 Bishop, Or. L. 1043, et seq.
It hath been holden not to be material, upon an indict-
ment of perjury at common law, whether the false oath
were at all credited, or whether the party in whose
prejudice it was intended were, in the event, any way
aggrieved by it or not j insomuch as this is not a prosecu-
tion grounded on the damage of the party but on the abuse
of public justice. — 3 Burn's Justice, 1227.
Indictment for Perjury. — The Jurors for Our Lady the
46 PERJURY.
Queen, upon their oath present, that heretofore, to wit, at
the (assizes) holden for the county (or district) of
on the day of in the year of Our Lord, one
thousand before (one of the judges of Our
Lady the Queen), a certain issue between one E. F. and
one J. H. in a certain action of covenant was tried, upon
which trial A. B. appeared as a witness for and on behalf
of the said E. F., and was then and there duly sworn before
the said and did then and there, upon his oath
aforesaid, falsely, wilfully and corruptly depose and swear
in substance and to the effect following, " that he saw the
said G. H. duly execute the deed on which tlte said action
was brought," whereas, in truth, the said A. B. did not see
the said G. H. execute the said deed, and the said deed
was not executed by the said G. H., and the said A. B.
did thereby commit wilful and corrupt perjury.
Sect. 107 of the Procedure Act enacts as follows, con-
cerning the form of indictment in perjury : " In any indict-
ment for perjury, or for unlawfully, illegally, falsely,
fraudulently, deceitfully, maliciously or corruptly taking,
making, signing or subscribing any oath, affirmation,
declaration, affidavit, deposition, bill, answer, notice, certi-
ficate or other writing, it shall be sufficient to set forth the
substance of the offence charged upon the defendant, and
by what Court or before whom the oath, affirmation,
declaration, affidavit, deposition, bill, answer, notice, certi-
ficate, or other writing was taken, made, signed or sub-
scribed, without setting forth the bill, answer, information,
indictment, declaration, or any part of any proceeding
either in law or equity, and without setting forth the
commission or authority of the Court or person before
whom such offence was committed."
No indictment for perjury or subornation of perjury can
PERJURY. 47
be preferred, unless one or other of the preliminary steps
required by sec. 140 of the Procedure Act has been taken.
Perjury is not triable at Quarter Sessions. — 2 Hawkins,
c. 8, & 38 ; R. v. Bainton, 2 Str. 1088; R. v. Yarrington,
1 Salk. 406 ; Dickinson's, Quarter Sessions, 156 ; R. v.
Higgins, 2 East. 18; R. v. CurHe, 31 U. C. Q. B. 582.
The indictment must allege that the defendants swore
falsely, wilfully and corruptly ; where the word felon-
iotuly was inserted instead of falsely, the indictment,
though it alleged that the defendant swore wilfully,
corruptlj and maliciously, was held bad in substance, and
not amendable. — R. v. Oxley, 3 C. & K. 317; Archbold,
812.
If the same person swears contrary at different times,
it should be averred on which occasion he swore wilfully,
falsely and corruptly. — R. v. Harris, 5 B. & Aid. 926.
As to assignments of perjury, the indictment must
assign positively the manner in which the matter sworn
to is false. A general averment that the defendant falsely
swore, etc., etc., upon the whole matter is not sufficient;
the indictment must proceed by special averment to
negative that which is false. — 3 Burn's Justice, 1235.
Proof. — It seems to have been formerly thought that in
proof of the crime of perjury, two witnesses were neces-
sary ; but this strictness, if it was ever the law, has long
since been relaxed ; the true principle of the rule being
merely this, that the evfdence must be something more
than sufficient to counterbalance the oath of the nrisoner
and the legal presumption of his innocence. The oath of
the opposing witness therefore will not avail, unless it be
corroborated by material and independent circumstances ;
for otherwise there would be nothing more than the oath
of one man against another, and the scale of evidence being
48 PERJURY.
thus in one sense balanced, it is considered that the jury
cannot safely convict. So far the rule is founded on sub-
stantial justice. But it is not precisely accurate to say that
the corroborative circumstances must be tantamount to
another witness ; for they need not be such as that proof of
them, standing alone, would justify a conviction, in a case
where the testimony of a single witness would suffice for
that purpose. Thus, a letter written by the defendant,
contradicting his statement on oath, will render it unneces-
sary to call a second witness. Still, evidence confirma-
tory of the single accusing witness, in some slight particu-
lars only, will not be sufficient to warrant a conviction,
but it must at least be strongly corroborative of his
testimony, or to use the quaint but energetic language of
Chief Justice Parker, " a strong and clear evidence, and
more numerous than the evidence given for the defen-
dant." When several assignments of perjury are included
in the same indictment, it does not seem to be clearly
settled whether, in addition to the testimony of a single
witness, corroborative proof must be given with respect to
each ; but the better opinion is that such proof is neces-
sary ; and that too, although all the perjuries assigned
were committed at one time and place. For instance, if a
person, on putting in his schedule in the Bankruptcy
Court, or on other the like occasion, has sworn that he has
paid certain creditors, and is then indicted for perjury on
several assignments, each specifying a particular creditor
who has not been paid, a single witness with respect to
each debt will not, it seems, suffice, though it may be very
difficult to obtain any fuller evidence. The principle that
one witness, with corroborating circumstances, is sufficient
to establish the charge of perjury, leads to the conclusion,
that without any witness directly to disprove what is
PERJURY. 49
sworn, circumstances alone, when they exist in a documen-
tary shape, may combine to the same effect; as they may
combine, though altogether unaided by oral proof, except
the evidence of their authenticity, to prove any other fact
connected with the declarations of persons or the business
of life. In accordance with these views, it has been held
in America, that a man may be convicted of perjury on
documentary and circumstantial evidence alone, first, where
the falsehood of the matter sworn to by him is directly
proved by written evidence springing from himself, with
circumstances showing the corrupt intent ; secondly, where
the matter sworn to is contradicted by a public record,
proved to have been well known to the prisoner when he
took the oath ; and thirdly, where the party is charged
with taking an oath contrary to what he must necessarily
have known to be true, the falsehood being shown by his
own letter relating to the fact sworn to, or by any other
writings which are found in his possession, and which have
been treated by him as containing the evidence of the fact
recited in them.
If the evidence adduced in proof of the crime of per-
jury consists of two opposing statements by the pris-
oner, and nothing more, he cannot be convicted. For,
if one only was delivered under oath, it must be pre-
sumed, from the solemnity of the sanction, that the decla-
ration was the truth, and the other an error or a false-
hood; though, the latter, being inconsistent with what
lie has sworn may form important evidence with other
circumstances against him. And if both the contradictory
statements were delivered under oath, there is still nothing
to show which of them is false, when no other evidence
of the falsity is given. If, indeed, it can be shown that
before making the statement on which perjury is assigned
E
50 PERJURY.
the accused had been tampered with, or if any other
circumstances tend to prove that the statement offered
as evidence against the prisoner was true, a legal con-
viction may be obtained, and provided the nature of the
statement was such, that one of them must have been false
to the prisoyier's knowledge, slight corroborative evidence
would probably be deemed sufficient. But it does not
necessarily follow that because a man has given contra-
dictory accounts of a transaction on two occasions he has
therefore committed perjury. For cases may well be con-
ceived in which a person might very honestly swear to a
particular fact, from the best of his recollection and belief,
and might afterwards from other circumstances be con-
vinced that he was wrong, and swear to the reverse, with-
out meaning to swear falsely either time. Moreover, when
a man merely swears to the best of his memory and belief,
it of course requires very strong proof to show that he
is wilfully perjured. The rule requiring something more
than the testimony of a single witness on indictments for
perjury, is confined to the proof of the falsity of the
matter on which the perjury is assigned. Therefore the
holding of the Court, the proceedings in it, the administer-
ing the oath, the evidence given by the prisoner, and, in
short, all the facts, exclusive of the falsehood of the state-
ment, which must be proved at the trial, may be established
by any evidence that would be sufficient, were the pris-
oner charged with any other offence. For instance, if the
false swearing be that two persons were together at a
certain time, and the assignment of perjury be that they
were not together at that time, evidence by one witness
that at the time named the one person was at London,
and by another witness that at the same time the other
person was in York, will be sufficient proof of the as-
PERJURY. 51
signment of perjury. — 2 Taylor on Evidence, par. 876,
et seq.
On an indictment for perjury alleged to have been
committed at the Quarter Sessions, the chairman of the
Quarter Sessions ought not to be called upon to give
evidence as to what the defendant swore at the Quarter
Sessions. — B. v. Gazard, 8 C. <& P. 595.
But this ruling is criticized by Greaves, note n, 3
Buss. 86, and Byles, J., in R. v. Harvey, 8 Cox, 99,
said that though the judges of Superior Courts ought not
to be called upon to produce their notes, yet the same
objection was not applicable to the judges of Inferior
Courts, especially where the judge is willing to appear. —
3 Burn' 8 Justice, 1243.
In R. v. Hook, Dears & B. 606, will be found an inter-
esting discussion on the evidence necessary upon an indict-
ment for perjury.
By sect. 16 of the Procedure Act, every person accused
of perjury may be dealt with, indicted, tried and punished
in the district, county or place in which the offence is
committed, or in which he is apprehended or is in custody.
The Imperial Statute, corresponding to sect. 4 of our
revised Perjury Act, authorizes the judge to commit,
tmfesssuch person shall enter into a recognizance and give
sureties. Our statute gives power to commit or to permit
such person to enter into a recognizance and give sureties.
Greaves remarks on this clause : " The crime of perjury
has become so prevalent of late years, and so many cases
of impunity have arisen, either for want of prosecution,
or for defective prosecution, that this and the following
sections were introduced to check a crime which so vitally
affects the interests of the community.
" It was considered that by giving to every Court and
52 PERJURY.
person administering oaths a power to order a prosecution
for perjury at the public expense, coupled with a power of
commitment in default of bail, many persons would be
deterred from committing so detestable a crime, and in
order to effectuate this object, the present clause was
framed, and as it passed the Lords it was much better
calculated to effect that object than as it now stands.
" As it passed the Lords it applied to any justice of the
peace. The committee in the Commons confined it to
justices in petty and special sessions, — a change much to
be regretted, as a large quantity of business is transacted
before a single justice or one metropolitan or stipendiary
magistrate, who certainly ought to have power to commit
under this clause for perjury committed before them.
" Again, as the clause passed the Lords, if an affidavit,
etc., were made before one person, and used before another
judge or Court, etc., and it there appeared that perjury
had been committed, such judge or Court might commit.
The clause has been so altered, that the evidence must be
given, or the affidavit, etc., made before the judge, etc.,
who commits. The consequence is, that numerous cases
are excluded ; for instance, a man swears to an assault or
felony before one justice, and on the hearing before
two it turns out he has clearly been guilty of perjury ?
yet he cannot be ordered to be prosecuted under this
clause. Again, an affidavit is made before a commissioner,
the Court refer the case to the master, and he reports
that there has been gross perjury, or the Court see on
the hearing of the case before them that there has been
gross perjury committed, yet there is no authority to order
a prosecution under this clause. So, again, a man is com-
mitted for trial on the evidence of a witness which is
proved on the trial to be false beyond all doubt, yet
PERJURY. 53
if such witness be not examined, and do not repeat the
same evidence on the trial, the Court cannot order him
to be prosecuted.
* It is to be observed, that before ordering a prosecution
under this clause, the Court ought to be satisfied, not only
that perj ury has been committed, but that there is a ' rea-
sonable cause for such prosecution.' Now it must ever be
remembered that two witnesses, or one witness and some-
thing that will supply the place of a second witness, are
absolutely essential to a conviction for perjury. The Court,
therefore, should not order a prosecution, unless it sees
that such proof is capable of being adduced at the trial ;
and as the Court has the power, it would be prudent, in
every case, if practicable, at once to bind over such two
witnesses to give evidence on the trial, otherwise it may
happen that one or both may not be then forthcoming to
give evidence. It would be prudent also for the Court to
give to the prosecutor a minute of the point on which, in
its judgment, the perjury had been committed, in order to
guide the framer of the indictment, who possibly may be
wholly ignorant otherwise of the precise ground on which
the prosecution is ordered. It is very advisable also that
where the perjury is committed in giving evidence, such
evidence should be taken down in writing by some person
who can prove it upon the trial, as nothing is less satisfac-
tory or more likely to lead to an acquittal than that the
evidence of what a person formerly swore should depend
entirely upon mere memory. Indeed, it may well be
doubted whether it would be proper to order a prosecution
in any case under this Act, where there was no minute in
writing of the evidence taken down at the time.
" Again, it ought to be clear, beyond all reasonable
doubt, that perjury has been will/ 'ally committed before
54 PERJURY.
a prosecution is ordered." — Lord Campbell's Acts, by
Greaves, 22.
See sect. 225 of the Procedure Act as to proof of trial for
felony or misdemeanor in which perjury was committed.
It is to be observed that this section is merely remedial,
and will not prevent a regular record from being still
admissible in evidence, and care must be taken to have
such record drawn up in any case where the particular
averments in the former indictment may be essential. —
Lord Campbell's Acts, by Greaves, 27.
SUBORNATION OF PERJURY.
Sec. 108 and second schedule of Procedure Act, as to
form of indictment. — 14-15 V., c. 100, s. 21, Imp.
Subornation of perjury is a misdemeanor, as perjury
itself, and subject to the same punishment. — See remarks
under sect. 1, ante.
Sect. 5, ante, declaring all evidence whatever material
with respect to perjury, also applies to subornation of
perjury.
Sect. 225 of the Procedure Act, ante, as to certificate of
indictment and trial, applies also to subornation of per-
jury-
Sect. 16 of the Procedure Act, allowing perjury to be
tried where the offender is apprehended or is in custody,
does not appear to apply to subornation of perjury.
Subornation of perjury, by the common law, seems to
be an offence in procuring a man to take a false oath,
amounting to perjury, who actually taketh such oath. —
1 Hawkins, 435.
But it seemeth clear that if the person incited to take
such an oath do not actually take it, the person by whom
he was so incited is not guilty of subornation of perjury,
PERJURY. 55
yet it is certain that he is liable to ba punished, not only
by fine, but also by infamous corporal punishment. — 1
Hawkins, loc. cit.
An attempt to suborn a person to commit perjury, upon
a reference to the judges, was unanimously holden by them
to be a misdemeanor. — 1 Russ. 85.
And, upon an indictment for subornation of perjury, if
it appears, at the trial, that perjury was not actually com-
mitted, but that the defendant was guilty of the attempt
to suborn a person to commit the offence, such defendant
may be found guilty of the attempt. — Sec. 183, Procedure
Act.
In support of an indictment for subornation the record
of the witness's conviction for perjury is no evidence against
the suborners, but the offence of the perjured witness must
be again regularly proved. Although several persons can-
not be joined in an indictment for perjury, yet for subor-
nation of perjury they may. — 3 Burn's Justice, 1246.
Indictment, same as indictment for perjury to the end,
and then proceed : — And the Jurors aforesaid upon their
oath aforesaid further present, that before the committing
of the said offence, by the said A. B., to wit, on the
day of.. at C. D. unlawfully, wilfully and
corruptly did cause and procure the said A. B. to do and
commit the said offence in the manner and form aforesaid.
No indictment can be preferred for subornation of per-
jury unless one or other of the preliminary steps required
by sect. 140 of the Procedure Act has been taken.
As perjury, see ante, subornation of perjury is not tria-
ble at Quarter Sessions.
Indictment quashed (for perjury) none of the formalities
required by sec. 140 of the Procedure Act having been
complied with. — R. v. Granger, 7 L. N. 247.
56 PERJURY.
A person accused of perjury cannot have accomplices,
and is alone responsible for the crime of which he is
accused. — R. v. Pelletier, 1 R. L. 565.
Including two charges of perjury in one indictment
would not be ground for quashing it. An indictment that
follows the form given by the Statute is sufficient. — R. v.
Bain, Ramsay's App. Cas. 191.
The non-production by the prosecution, on a trial for
perjury, of the plea which was filed in the civil suit
wherein the defendant is alleged to have given false testi-
mony, is not material when the assignment of perjury has
no reference to the pleading, but the defendant may, if
he wishes, in case the plea is not produced, prove its
contents by secondary evidence. It is not essential to
prove that the facts sworn to by the defendant, as alleged
in the indictment, were material to the issue in the cause
in which the defendant was examined. — R. v. Ross, 1 M.
L. R. Q. B. 227; 28 L. C. J. 261.
CHAPTER 155.
AN ACT RESPECTING ESCAPES AND RESCUES.
HER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
1. Every one who is convicted of a felonious rescue is liable to
seven years' imprisonment, when no special punishment is otherwise
provided by statute.— 32-33 V., c. 29, s. 84, part
2. Every one who escapes from or rescues, or aids in rescuing any
other person from lawful custody, or makes or causes any breach of
prison, if such offence does not amount to felony, is guilty of a mis-
demeanor, and liable to imprisonment for any term less than two
years.— 32-33 V., c. 29, s. 84, part.
3. Every one who, being a prisoner ordered to be detained in any
penitentiary, escapes from the person or persons having the lawful
custody of him, when being conveyed thereto, or when being conveyed
from one penitentiary to another, is guilty of felony, and liable to two
years' imprisonment. — 46 V. c. 37, s. 54, part.
4. Every one who, being a prisoner in a penitentiary, breaks prison
or escapes, or attempts to escape from the custody of any officer, guard
or other servant of the penitentiary while at work, or passing to or
from work, either within or beyond the prison walls or penitentiary
limits, is guilty of felony, and liable to three years' imprisonment. — 46
V-, c 37, s. 54, part.
6. Every one who, being a prisouer in any penitentiary, at any
time attempts to break prison, or who forcibly breaks out of his cell,
or makes any breach therein with intent to escape therefrom, whether
successful or not, is guilty of felony, and liable to one year's impris-
onment— 46 V., c 37, s. 55, part.
6. Every one who rescues or attempts to rescue any prisoner
while being conveyed to any penitentiary, or while imprisoned
therein, or while being conveyed from one penitentiary to another,
or while passing to or from work at or near any penitentiary, —
and every one who by supplying arms, tools or instruments of
disguise, or otherwise, in any manner aids any such prisoner in
any escape or attempt at escape, is guilty of felony, and liable
to five years' imprisonment. — 46 V., c. 37, s. 57.
58 ESCAPES AND EESCUES.
7. Every one who, having the custody of any such prisoner as
aforesaid, or being employed by the person having such custody, as
a keeper, turnkey, guard or assistant, carelessly allows any such
prisoner to escape, is guilty of a misdemeanor, and liable to fine or
imprisonment, or to both, in the discretion of the court ; and every
such person as aforesaid, who knowingly and wilfully allows any
such convict to escape, is guilty of felony, and liable to five years'
imprisonment. — 46 V., c. 37, s. 58.
8. Every one who, knowingly and unlawfully, under color of any
pretended authority, directs or procures the discharge of any prisoner
not entitled to be so discharged, is guilty of misdemeanor, and liable
to imprisonment for any term less than two years, and the person so
discharged shall be held to have escaped. — 32-33 V., c 29, s 85.
0. Every one who, being sentenced to be detained in any reforma-
tory prison or reformatory or industrial school, escapes therefrom, may
at any time before the expiration of his term of detention, be appre-
hended without warrant, and brought before any justice of the peace or
magistrate, who, on proof of his identity, shall remand him to such
prison or school there to serve the remainder of his original sentence,
with such additional term, not exceeding one year, as to such justice
or magistrate seems proper. — 32-33 V., c. 34, s. 7 ; 33 V., c. 32, s. 5 ;
43 V., c. 41, s. 4 ; 47 V., c. 45, s. 6.
10. Every one who, —
(a.) Knowingly assists, directly, or indirectly, any offender detained
in a reformatory prison or reformatory or industrial school, to escape
from such prison or school, —
(6.) Directly or indirectly induces such an offender to escape from
such prison or school, —
(c.) Knowingly harbors, conceals or prevents from returning to the
prison or school, or assists in harboring, concealing or preventing
from returning to the prison or school, any offender who has escaped
from such prison or school, —
Shall be liable, on summary conviction before two justices of the
peace, to a penalty not exceeding eighty dollars, or to imprisonment
with or without hard labor for any term not exceeding two months.
—32-33 V., c. 34, s. 8.
11. Every one who escapes from imprisonment shall, on being
retaken, undergo, in the prison he escaped from, the remainder of his
term unexpired at the time of his escape, in addition to the punish-
ment which is awarded for such escape ; and any imprisonment
ESCAPES AND RESCUES. 59
awarded for such offence may be to the penitentiary or prison from
which the escape was made. — 32-33 F., c- 29, s. 87.
What is an escape ; when is an escape a felony, and
when a misdemeanor ; what is a prison-breaking, and when
is it a felony or a misdemeanor ; what is a rescue, and when
is it a felony or a misdemeanor ?
What is an escape. — An escape is where one who is
arrested gains his liberty without force before he is deliver-
ed by due course of law. The general principle of the law
on the subject is that as all persons are bound to submit
themselves to the judgment of the law, and to be ready to
be justified by it, those who, declining to undergo a legal
imprisonment when arrested on criminal process, free
themselves from it by any artifice, and elude the vigilance
of their keepers, are guilty of an offence of the nature of a
misdemeanor. It is also criminal in a prisoner to escape
from lawful confinement, though no force or artifice be used
on his part to effect such purpose. Thus, if a prisoner go
out of his prison without any obstruction, the doors being
opened by the consent or negligence of the gaoler, or if he
eacape in any other manner, without using any kind of
force or violence, he will be guilty of a misdemeanor : It.
v. Nugent, 11 Cox, 64. The officer by whose default a
prisoner gains his liberty before he is legally discharged is
also guilty of the offence of escape, divided in law, then,
in two offences, a voluntary escape or a negligent escape.
To constitute an escape, there must have been an actual
arrest in a criminal matter.
A voluntai~y escape is where an officer, having the cus-
tody of a prisoner, knowingly and intentionally gives him
his liberty, or by connivance suffers him to go free, either
to save him from his trial or punishment, or to allow him
a temporary liberty, on his promising to return, and, in fact,
60 ESCAPES AND RESCUES.
so returning. R. v. ShuttleworJc, 22 U. C. Q. B. 372.
Though, some of the books go to say that, in this last case,
the offence would amount to a negligent escape only.
A negligent escape is where the party arrested or im-
prisoned escapss against the will of him that arrests or
has him in charge, and is not freshly pursued and taken
again before he has been lost sight of. And in this case,
the law presumes negligence in the officer, till evident proof
on his part to the contrary. The sheriff is as much liable
to answer for an escape suffered by his officers, as if he had
actually suffered it himself. A justice of the peace who
bails a person not bailable by law is guilty of a negligent
escape, and the person so discharged is held to have
escaped.
When is an escape a felony, and when a misdemeanor.
— An escape by a prisoner himself is no more than a mis-
demeanor, whatever be the crime for which he is impris-
oned. Of course, this does not apply to prison-breaking, but
simply to the case of a prisoner running away from the
officer or the prison without force or violence. This offence
falls under s. 2, c. 155, ante, and is punishable by impris-
onment for any period less than two years. An officer
guilty of a voluntary escape is involved in the guilt of the
same crime of which the prisoner is guilty, and subject to
the same punishment, whether the person escaping were
actually committed to some gaol, or under an arrest only,
and not committed, and whether the offence be treason,
felony or misdemeanor, so that for instance, if a gaoler
voluntarily allows a prisoner committed for larceny to
escape he is guilty of a felonious escape, and punishable as
for larceny; whilst if such prisoner so voluntarily by him
allowed to escape was committed for obtaining money by
false pretences, the gaoler is then guilty of a misdemeanor,
ESCAPES AND RESCUES. 61
punishable under the common law by fine or imprisonment,
or both, as c 155, ante (except s. 7, for certain specified
escapes), does not apply to escape as an offence by an
officer or gaoler, either when a felony or a misdemeanor.
Greaves, note r, 1 Buss. 587, says that the gaoler might
also, in felonies, be tried as an accessory after the fact, for
voluntary escape. A negligent escape is always a mis-
demeanor, and is punishable, at common law, by fine or
imprisonment or both.
What is a prison-breaking, and when is it a felony
or a misdemeanor . The offence of prison-breach is a break-
ing and going out of prison by force by one lawfully con-
fined therein. Any prisoner who frees himself from lawful
imprisonment, by what the law calls a breaking, commits
thereby a felony or a misdemeanor, according as the
cause of his imprisonment was of one grade or the other.
R. v. Hasuell, R. & R. 458. But a mere breaking is not
sufficient to constitute this offence : the prisoner must
have escaped. The breaking of the prison must be an
actual breaking, and not such force and violence only as
may be implied by construction of law. Any place where
a prisoner is lawfully detained is a prison quoad thi3
offence, so a private house is a prison if the prisoner is in
custody therein. If the prison-breaking is by a person
lawfully committed for a misdemeanor, it is, as remarked
before, a misdemeanor, but if the breaking is by a person
committed for felony, then his offence amounts to felony.
A prisoner was indicted for breaking out from the lock-
up, being then in lawful custody for felony. It appeared
that the prisoner and another man had been given into the
custody of a police officer, without warrant, on a charge of
stealing a watch from the person. They were taken before
a magistrate. No evidence was taken upon oath, but the
62 ESCAPES AND RESCUES.
prisoner was remanded for three days. The prisoner broke
out of the lock-up and returned to his home. He appeared
before the magistrate on the day to which the hearing of
the charge had been adjourned, and on the investigation
of the charge it was dismissed by the magistrate, who
stated that in his opinion it was a lark, and no jury would
convict. The prisoner contended that the charge having
been dismissed by the magistrate, he could not be con-
victed of prison-breaking, citing 1 Hale, 610, 611, that if
a man be subsequently indicted for the original offence
and acquitted, such acquittal would be a sufficient defence
to an indictment for breach of prison. But Martin, B.,
held that a dismissal by the magistrate was not tanta-
mount to an acquittal upon an indictment, and that it
simply amounted to this, that the justices did not think
it advisable to proceed with the charge, but it was still
open to them to hear a fresh charge against him. The
prisoner was found guilty. — R. v. Waters, 12 Cox, 390.
What is a rescue, and wtien is it a felony or a misde-
meanor.— Eescue is the forcibly and knowingly freeing
another from an arrest or imprisonment. A rescue in the
case of one charged with felony is felony in the rescuer,
and a misdemeanor, if the prisoner is charged with a mis-
demeanor. R. v. Haswell, R. & R., 458. But though upon
the principle that wherever the arrest of a felon is lawful
the rescue of him is a felony, it will not be material whe-
ther the party arrested for felony, or suspicion of felony, be
in the custody of a private person or of an officer ; yet, if he
be in the custody of a private person, it seems that the
rescuer should be shown to have knowledge of the party
being under arrest for felony. The 16 Geo. II, c. 31, makes
it a felony to aid or assist a prisoner to attempt to make
his escape from any gaol, although no escape is actually
ESCAPES AND RESCUES. 63
made, if such prisoner is committed for a felony, expressed
in the warrant of commitment, and a misdemeanor, if
such prisoner is detained for a misdemeanor, or for a
sum amounting to one hundred pounds ; also, under the
same circumstances, either a felony or a misdemeanor,
to convey any disguise or instruments into any prison,
to facilitate the escape of prisoners. A rescue, either
when a felony or a misdemeanor, is now punishable
under the above Act.
See 1 Muss. 581, et seq. ; 4 Stephen's Comm. 227, et
seq. ; 1 Hale, P. C. 595 ; 2 Haivkins, p. 183 ; 5 Rep. Cr,
L. Cora. (1840), p. 53 ; 2 Bishop, Cr. L. 1066.
Under sec. 6 of the Act, see R. v. Payne, 1 L. R. C. C.t
27.
For forms of indictment, see Archbold, 795 ; 2 Ckitty,
Cr. L. 165; 5 Burns Just. 137 ; 3 Burn's Just. 1332;
2 Bum's Just. 10 ; R. v. Young, 1 Russ. 291.
By sec. 183 of the Procedure Act, upon an indictment
for any of these offences, the defendant may be found
guilty of the attempt to commit the offence charged, if the
evidence warrants it.
CHAPTER 156.
AN ACT RESPECTING OFFENCES AGAINST
EELIGION.
HER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
1. Every one who, by threats or force, unlawfully obstructs or
prevents, or endeavors to obstruct or prevent, any clergyman or other
minister in or from celebrating divine service, or otherwise officiating
in any church, chapel, meeting-house, school-house or other place
used for divine worship, or in or from the performance of his duty in
the lawful burial of the dead, in any church-yard or other burial
place, or strikes or offers any violence to, or upon any civil process, or
under the pretence of executing any civd process, arrests any clergy-
man or other minister who is engaged in or, to the knowledge of the
offender, is about to engage in any of the rites or duties in this section
mentioned, or who, to the knowledge of the offender, is going to
perform the same, or returning from the performance thereof, is guilty
of a misdemeanor, and liable to imprisonment for any term less than
two years— 32-33 V., c 20, s. 36- 24-25 V-, c. 100, s. 36, Imp.
2. Every one who wilfully disturbs, interrupts or disquiets any
assemblage of persons met for religious worship, or for any moral,
social or benevolent purpose, by profane discourse, by rude or indecent
behavior, or by making a noise, either within the place of such
meeting or so near it as to disturb the order or solemnity of the meet-
ing, is guilty of a misdemeanor and liable, on summary conviction, to
a penalty not exceeding twenty dollars and costs, and, in default of
payment, to imprisonment for a term not exceeding one month, — and
may be arrested on view by any peace officer present at such meeting,
or by any other person present, verbally authorized thereto by any
justice of the peace present thereat, and detained until he can be
brought before a justice of the peace. — 32-33 V., c. 20, s. 37.
The word school-house in the first section is not in the
English Act, and the words used for divine worship are
substituted for of divine worship.
Indictment for obstructing a clergyman in the dis-
OFFENCES AGAINST RELIGION. 65
charge of his duty..... unlawfully did by force (threats
or force) obstruct and prevent one J. N,, a clergyman,
then being the vicar of the parish of B., in the county of
M., from celebrating divine service in the parish church
of the said parish (or in the performance of his duty in
the lawful burial of the dead in the church-yard of the
parish church of the said parish) agai nst the form
Prove that J. N. is a clergyman and vicar of the parish
of B., as stated in the indictment ; that the defendant by
force obstructed and prevented him from celebrating divine
service in the parish church, etc., etc., or assisted in doing
so. — Archbold.
Indictment for arresting a clergyman about to engage
in the performance of divine service unlawful y
did arrest one J. N., a clergyman, upon certain civil process,
whilst he, the said J. N., as such clergyman as aforesaid,
was going to perform divine service, he the said (defendant)
then well knowing that the said J. N. was a clergyman,
and was so going to perform divine service as aforesaid ;
against the form Archbold.
The Imperial Statutes corresponding to the second
clause are the 1 W. & M. c. 18 ; 52 G. 3, c. 155, s. 12 ;
15-16 V.,c. 36; 23-24 V., c. 32.
The offences against the second clause are punishable by
summary conviction. The clause seems to be based on
c 92, s. 18, C. S. Canada, and c. 22, s. 3, C. S. L. Canada.
CHAPTER 157.
AN ACT EESPECTING OFFENCES AGAINST PUBLIC
MORALS AND PUBLIC CONVENIENCE.
H
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
1. Every one who commits the crime of buggery, either with a
human being or with any other living creature, is guilty of felony, and
liable to imprisonment for life. 32-33 V.y c. 20, s. 63. 24-25 V., c. 100,
s. 61, Imp.
Indictment — in and upon one J. N. feloniously
did make an assault, and then feloniously, wickedly, and
against the order of nature had a venereal affair with the
said J. N., and then feloniously carnally knew him, the
said J. N., and then feloniously, wickedly, and against the
order of nature, with the said J. N., did commit and per-
petrate that detestable and abominable crime of buggery
(not to be named among Christians) ; against the form
— Archbold, 716.
Sodomy or Buggery is a detestable and abominable sin,
amongst Christians not to be named, committed by carnal
knowledge against the ordinance of the Creator and order
of nature by mankind with mankind, or with brute and
beast, or by womankind with brute beast. — 3 Inst. 58.
If the offence be committed on a boy under fourteen
years of age, it is felony in the agentonly. — 1 Hale, 670.
If by a boy under fourteen on a man over fourteen, it is
felony in the patient only. — Archbold, 752.
The evidence is the same as in rape, with two exceptions :
first, that it is not necessary to prove the offence to have
been committed against the consent of the person upon
whom it was perpetrated; and secondly, both agent and
PUBLIC MORALS, ETC. 67
patient (if consenting) are equally guilty. — 5 Burn's Jus-
tice, 644.
In R. v. Jacobs, R. and R. 331, it was proved that
the prisoner had prevailed upon a child, a boy of seven
years of age, to go with him in a back-yard ; that he, then
and there, forced the boy's mouth open with his fingers,
and put his private parts into the boy's mouth, and emitted
in his mouth ; the judges decided that this did not consti-
tute the crime of sodomy.
In one case, the majority of the judges were of opinion
that the commission of the crime with a woman was
indictable ; also by a man with his wife. — 1 Russ. 939.
As in the case of rape, penetration alone is sufficient to
constitute the offence.
The evidence should be plain and satisfactory in propor-
tion as the crime is detestable.
Upon an indictment under this section, the prisoner
may be convicted of an attempt to commit the same. —
Sect. 183 of the Procedure Act.
The punishment would then be under the next section.
The defendant may be convicted of an assault, if the
evidence warrants it. Sect. 191, Procedure Act.
Indictment for bestiality. — with a certain cow
(any animal) feloniously, wickedly and against the order
of nature had a venereal affair, and then feloniously, wick-
edly and against the order of nature, with the said cow did
commit and perpetrate that detestable and abominable
crime of buggery (not to be named among Christians) ;
against the form
2. Every one who attempts to commit buggery, or assaults any
person with intent to commit buggery, or who, being a male, inde
cently assaults any other male, is guilty of a misdemeanor, and liable
to ten years' imprisonment.— 32-33 V., c. 20, *. 64. 24-25 V., c. 100,
«. 62, Imp.
68 PUBLIC MOKALS, ETC.
Indictment. — in and upon one J. N. did make an
assault, and him, the said J. N. did then beat, wound and
ill-treat, with intent that detestable and abominable crime
called buggery with the said J. N. feloniously, wickedly,
diabolically, and against the order of nature to commit and
perpetrate against the form, &c, &c, &c. — Archbold, 718.
If the indictment be for an indecent assault, one or
other of the preliminary steps required by sect. 140 of the
Procedure Act must be taken.
Where there is a consent there cannot be an assault in
point of law. — E. v. Martin, 2 Moo. C. C. 123. A man
induced two boys above the age of fourteen years to go
with him in the evening to an out of the way place, where
they mutually indulged in indecent practices on each
others' persons : Held, on a case reserved, that under these
circumstances, a conviction for an indecent assault could
not be upheld. — R. v. Wollaston, 12 Cox, 180.
But the definition of an assault that the act must be
against the will of the patient implies the possession of
an active will on his part, and, therefore, mere submission
by a boy eight years old to an indecent assault and immo-
ral practices upon his person, without any active sign of
dissent, the child being ignorant of the nature of the
assault, does not amount to consent so as to take the
offence out of the operation of criminal law. — R. v.
Loch, 12 Cox, 244.
The prisoner was indicted for an indecent assault upon
a boy of about fourteen years of age. The boy had
consented. Held, on the authority of R. v. Wollaston,
12 Cox, 180, that the charge was not maintainable,
R. v. Laprise, 3 L. JV. 139.
3. Every one who —
(a.) Seduces and has illicit connection with any girl of previously
PUBLIC MORALS, ETC. 69
chaste character, or who attempts to have illicit connection with any
girl of previously chaste character, being in either case of or above
the age of twelve years and under the age of sixteen years, or —
(6.) Unlawfully and carnally knows, or attempts to have unlawful
carnal knowledge of any female idiot or imbecile or insane woman
or girl, under circumstances which do not amount to rape, but which
prove that the offender knew at the time of the offence, that the
woman or girl was an idiot or imbecile or insane, —
Is guilty of a misdemeanor, and liable to two years' imprisonment.
—49 V., c. 52, s. 1 and s. 8, part.^ 50-51 V., c. 48.
4. Every one above the age of twenty-one years who, under pro-
mise of marriage, seduces and has illicit connection with ar.y
unmarried female of previously chaste character and under twenty-
one years of age, is guilty of a misdemeanor, and liable to imprison-
ment for a term not exceeding two years. — 50-51 V., c- 48, s. 2.
5. Every one who, being the owner and occupier of any premises,
or having, or acting, or assisting in the management or control thereof,
induces, or knowingly suffers, any girl of such age as in this section
mentioned, to resort to or be in or upon such premises for the pur-
pose of being unlawfully and carnally known by any man, whether
such carnal knowledge is intended to be with any particular man or
generally, —
(a.) If such girl is under the age of twelve years, is guilty of felony,
and liable to ten years' imprisonment, —
(6.) If such girl is of or above the age of twelve and under the age
of sixteen years, is guilty of a misdemeanor, and liable to two years'
imprisonment :
Provided, that it shall be a sufficient defence to any charge under
this section if it is made to appear to the court or jury before whom
the charge is brought, that the person so charged had reasonable
cause to believe that the girl was of or above the age of sixteen years.
—49 V., c. 52, s. 4 and s. 8, part. 48-49 V., e. 69, Imp.
6. No person shall be convicted of any offence under the three
sections of this Act next preceding upon the evidence of one witness,
unless such witness is corroborated iu some material particular by
evidence implicating the accused :
2. In every case arising under the said sections, the defendant shall
be a competent witness in his own behalf upon any charge or com-
plaint against him ;
3. No prosecution under the said sections shall be commenced after
70 PUBLIC MOEALS, ETC.
the expiration of one year from the time when the offence was com-
mitted.— 49 V., c. 52, ss. 5, 6 and 7, parts.
A mother may be convicted under sec. 5, of knowingly,
suffering her daughter aged 14 to be in or upon premises
for the purpose of prostitution, even if the premises are
their home. — R. v. Webster, 15 Cox, 775.
Under sec. 5, the reasonable belief that the girl was over
sixteen is a question for the jury. — R. v. Parker, 16 Cox,
57.
The jury may find the defendant guilty of the attempt
to commit the offence charged : s. 183, Proc. Act, R. v.
Adams 50 J. P. 136.
7. Every one who, by false pretences, false representations, or other
fraudulent means, —
(a.) Procures any woman or girl, under the age of twenty-one
years, to have illicit carnal connection with any man other than the
procurer, or —
(6.) Inveigles or entices any such woman or girl to a house of ill-
fame or assignation, for the purpose of illicit intercourse or prostitu-
tion, or who knowingly conceals in such house any such woman or
girl so inveigled or enticed, —
Is guilty of a misdemeanor, and is liable to two years' imprison-
ment ;
2. Whenever there is reason to believe that any such woman or
girl has been inveigled or enticed to a house of ill-fame or assigna-
tion, as aforesaid, then, upon complaint thereof being made under
oath by the parent, master or guardian of such woman or girl, or in
the event of such woman or girl having neither parent, master nor
guardian in the province in which the offence is alleged to have been
committed, by any other person, to any justice of the peace, or to a
judge of any court authorized to issue warrants in cases of alleged
offences against the criminal law, such justice of the peace or judge
of the court may issue a warrant to enter, by day or night, such house
of ill-fame or assignation, and to search for such woman or giri, and
bring her, and the person or persons in whose keeping and possession
ehe is, before such justice of the peace or judge of the court, who
may, on examination, order her to be delivered to her parent, master
or guardian, or to t>e discharged, as law and justice require. — 48-49
V., c. 82, *. 1. 24-25 V., c. 100, s. 49, Imp.
PUBLIC MORALS, ETC. 71
Indictment That J. S., on the first day of June,
in the year of our Lord by falsely pretending and
representing unto one A. B., that (here set out the
false 'pretences or representations) did procure the said
A. B, to have illicit carnal connection with a certain man
named (or to the jurors aforesaid unknown) she,
the said A. B., at the time of such procurement, being
then a woman (or girl) under the age of twenty-one years,
to wit, of the age of whereas in truth and in fact
(negative the pretences or representations) Archbold.
The pretences and representations made by the defen-
dant must be proved, as well as their falsehood. Also,
that by means of these false pretences or representations,
the defendant induced the woman, or girl, to have carnal
connection with the man named in the indictment, and
that she was then under twenty-one. On the trial of an
indictment under this section, the prisoner may be con-
victed of an attempt to commit the offence, under the sec,
183 of the Procedure Act.
In Howard v. R. 10 Cox, 54, held, that indictment
bad, even after verdict, if it does not allege what were
the false pretences.
8. All persons who, —
(a) Not having visible means of maintaining themselves, live with-
out employment, —
(6.) Being able to work and thereby or by other means to maintain
themselves and families, wilfully refuse or neglect to do so, —
(c.) Openly expose or exhibit in any street, road, public place or
highway, any indecent exhibition, or openly or indecently expose
their persons, —
id.) Without a certificate signed, within six months, by a priest,
clergyman or minister of the gospel, or two justices of the peace,
residing in the municipality where the alms are being asked, that he
or she is a deserving object of charity, wander about and beg, or go
72 PUBLIC MORALS, ETC.
about from door to door, or place themselves in any street, highway,
passage or public place to beg or receive alms, —
(e.) Loiter on any street or highway, and obstruct passengers by
standing across the footpaths or by using insulting language, or in
any other way, —
(/".) Cause a disturbance in any street or highway by screaming,
swearing or singing, or by being drunk, or by impeding or incommo-
ding peaceable passengers, —
(g.) By discharging firearms, or by riotous or disorderly conduct
in any street or highway, wantonly or maliciously disturb the peace
and quiet of the inmates of any dwelling house near such street or
highway,—
(h.) Tear down or deface signs, break windows, doors or door
plates, or the walls of houses, roads or gardens, or destroy fences, —
(i.) Are common prostitutes or night walkers, wandering in the
fields, public streets or highways, lanes or places of public meeting or
gathering of people, and not giving a satisfactory account of them-
selves,—
(j.) Are keepers or inmates of disorderly houses, bawdy-houses or
houses of ill-fame, or houses for the resort of prostitutes, or persons
in the habit of frequenting such houses, not giving a satisfactory
account of themselves, —
(k.) Have no peaceable profession or calling to maintain them-
selves by, but who do, for the most part, support themselves by gam-
ing or crime, or by the avails of prostitution, —
Are loose, idle or disorderly persons or vagrants, within the mean-
ing of this section :
2. Every loose, idle or disorderly person or vagrant shall, upon
summary conviction before two justices of the peace, be deemed guilty
of a misdemeanor, and shall be liable to a fine not exceeding fifty
dollars or to imprisonment, with or without hard labor, for any term
not exceeding six months, or to both.
3. Any stipendiary or police magistrate, mayor or warden, or any
two justices of the peace, upon information before them made, that
any person hereinbefore described as a loose, idle or disorderly person,
or vagrant, is or is reasonably suspected to be harbored or concealed
in any disorderly house, bawdy-house, house of ill-fame, tavern or
boarding-house, may, by warrant, authorize any constable or other
person to enter at any time such house or tavern, and to apprehend
and bring before them or any other justices of the peace, every per-
son found therein so suspected as aforesaid :
PUBLIC MORALS, ETC. 73
4- If provision is made therefor by the laws of the Province in
which the conviction takes place, any such loose, idle or disorderly
person may, instead of being committed to the common gaol or other
public prison, be committed to any house of industry or correction,
alms house, work house or reformatory prison. — 32-33 V., c 28 ; 37
V., c. 43 ; 44 Y., c. 31 ; R. S. N. & (3r<i S-), c. 162, s. 9.
No indictment can be preferred for keeping a disorderly-
house without one of the preliminaries required by sec. 140
of the Procedure Act.
On an indictment for indecent exposure of the person,
Held, that the exposure must be in an open and public
place, but not necessarily generally public and open ; if a
person indecently exposed his person in a private yard, so
that he might be seen from a public road where there
were persons passing, an indictment would lie. R. v.
Levasseur, 9 L. N. 386. See R. v. Wellard, 15 Cox,
559, Ex. parte Walter, Ramsay's App. cos. 183, R. v.
Harris, 11 Cox, 659.
A conviction under 32-33 V., c. 28, D. for that V. L.
on was a common prostitute, wandering in the
public streets of the city of Ottawa, and not giving a
satisfactory account of herself contrary to this Statute : —
Held, bad, for not shewing sufficiently that she was asked,
before or at the time of being taken, to give an account
of herself and did not do so satisfactorily. — R. v. Leveque,
30 U. C. Q. B. 509. See R. v. ArscoU, 9 0. R. 541, and
Arscott & Lilly, 11 0. R. 153.
Held, that under the Vagrant Act, it is not sufficient to
allege that the accused was drunk on a public street,
without alleging further that he caused a disturbance in
such street by being drunk. — Ex. parte, Despatie, 9 L. N.
387.
It is unlawful for men to bathe, without any screen or
covering, so near to a public footway frequented by
74
PUBLIC MORALS, ETC.
females that exposure of their persons must necessarily
occur, and they who so bathe are liable to an indictment
for indecency. — R. v. Reed, 12 Cox, 1.
To keep a booth on a race course for the purpose of an
indecent exhibition is a crime. — R. v. Saunders, 13 Cox,
116.
Conviction under 32-33 V., c. 28, for keeping a house of
ill-fame, imposed payment of a fine and costs to be
collected by distress, and in default of distress ordered
imprisonment. Held, good. The Queen v. Walker, 7 0. R.
186.
The charge against a prisoner, who was brought up on
a writ of habeas corpus, was " for keeping a bawdy house
for the resort of prostitutes in the City of Winnipeg. ''
" Keeping a bawdy house " is, in itself, a substantial
offence ; so is " keeping a house for the resort of
prostitutes."
Held, nevertheless, that there was but one offence
charged and that the commitment was good. — The Queen
v. McKenzie, 2 Man. L. R. 168.
CHAPTER 161.
AN ACT RESPECTING OFFENCES RELATING TO
THE LAW OF MARRIAGE.
H
En Majesty, by and with the advice and consent of theSenate and
House of Commons of Canada, enacts as follows : —
1. Every one who, —
(a) Without lawful authority, the proof of which shall lie on him,
solemnizes or pretends to solemnize any marriage, or —
(6.) Procures any person to solemnize any marriage, knowing
that such person is not lawfully authorized to solemnize such mar-
riage, or knowingly aids or abets such person in performing such
ceremony, —
Is guilty of a misdemeanor, and liable to a fine or to two years' im-
prisonment, or to both. — C- S. V. C, c. 102, ss. 1 and 2 ; R. S. N. S.
3rd S), c. 161, s 3 ; 1 R. S. N. B., c 146, s. 2.
2. Every one who procures a feigned or pretended marriage bet-
ween himself and any woman, and every one who knowingly aids
and assists in procuring such feigned or pretended marriage, is guilty
of a misdemeanor, and liable to two years' imprisonment :
2. No person shall be convicted of any offence under this section
upon the evidence of one witness, unless such witness is corroborated
in some material particular by evidence implicating the accused ;
3. In every case arising under this section the defendant shall be a
competent witness in his own behalf upon any charge or complaint
against him ;
4. No prosecution under this section shall be commenced after the
expiration of one year from the time when the offence was committed.
— 19 V., c. 52, ss. 3 and 5, 6, 7 and 8, parts.
3. Every one who, being lawfully authorized, knowingly and
wilfully solemnizes any marriage in violation of the laws of the
Province in which the marriage is solemnized, is guilty of a
misdemeanor, and liable to a fine or to one year's imprisonment :
2. No prosecution for any offence against this section shall be com-
menced, except within two years after the offence is committed.
—C. S. U. C, c. 102, ss. 3 and 4 parts; 1 R. S. N. B., c 146, «. 3,
part; R. & B. C, c 89, *. 14.
76 MARRIAGE, BIGAMY, ETC.
See form of indictment in 2c? Schedule, Procedure Act.
See sees. 157 and 158 of the Civil Code as to Province
of Quebec for offences covered by Sees. 1 and 3 of this
Act.
BIGAMY.
4. Every one who, being married, marries any other person during
the life of the former husband or wife, whether the second marriage
takes place in Canada, or elsewere, is guilty of felony, and liable to
seven years' imprisonment:
2. Nothing in this section contained shall extend to, —
(d) Any second marriage contracted elsewhere than in Canada by
any other than a subject of Her Majesty resident in Canada and
leaving the same with intent to commit the offence ;
(6) Any person marrying a second time, whose husband or wife
has been continually absent from such person for the space of seven
years then last past, and who was not known by such person to be liv-
ing within that time :
(c) Any person who, at the time of such second marriage, was
divorced from the bond of the first marriage ; or —
(d) Any person whose former marriage has been declared void by
the sentence of any court of competent jurisdiction. — 32-33 V., c. 20,
s. 58, part. 24-25 V., c 100, s. 57, Imp.
See sect. 16 of the Procedure Act as to venue.
Indictment. — The Jurors for Our Lady the Queen upon
their oath present, that J. S. on in the year of Our
Lord at the parish of in the did
marry one A. C, spinster, and her the said A. C. then and
there had for his wife ; and that the said J. S. afterwards,
and whilst he was so married to the said A. C, as aforesaid,
to wit, on the day at feloniously
and unlawfully did marry and take to wife one M. Y., and
to her the said M. Y. was then and there married, the said
A. C, his former wife, being then alive ; against the
form and the jurors aforesaid, upon that the
said J. S. afterwards, to wit, on at in the
district of within the jurisdiction of the said Court,
MARRIAGE, BIGAMY, ETC. 77
was apprehended (or is now in custody in the common
gaol of the said district of at within the
jurisdiction of the said Court) for the said felony. —
Archbold.
Bigamy is the felonious offence of a husband or wife
marrying again during the life of the first wife or husband,
It is not strictly correct to call this offence bigamy ; it is
more properly denominated polygamy, i. e., having a
plurality of wives or husbands at once, while bigamy
according to the canonists consists in marrying two virgins
successively, one after the death of the other, or in
ouce marrying a widow. — Wharton's Law Lexicon verbo
Bigamy.
Upon an indictment for bigamy, the prosecutor must
prove : 1st, the two marriages ; 2nd, the identity of the
parties. — Roscoe, 294.
The law will not, in cases of bigamy, presume a mar-
riage valid to the same extent as in civil cases. — R. v.
Jacob, 1 Moo. C. C. 140.
The first wife or husband is not a competent witness to
prove any part of the case, but the second wife or husband
is, after the first marriage is established, for she or he is not
legally a wife or husband. — R. v. Ayley, 15 Cox, 328.
The first marriage must be a valid one. The time at
which it was celebrated is immaterial, and whether cele-
brated in this country or in a foreign country is also imma-
terial.— Archbold, 883.
If celebrated abroad, it may be proved by any person
who was present at it ; and circumstances should also be
proved, from which the jury may presume that it was a
valid marriage according to the laws of the country in
which it was celebrated. Proof that a ceremony was per-
formed by a person appearing and officiating as a priest,
78 MARRIAGE, BIGAMY, ETC.
and that it was understood by the parties to be the mar-
riage ceremony, according to the rites and customs of the
foreign country, would be sufficient presumptive evidence
of it, so as to throw upon the defendant the onus of
impugning its validity. —A rchbold. R. v. Cresswell, 13
Cox, 126. See R. v. Savage 13 Cox 178 and R. v. Griffin,
14 Cox, 308 ; followed in R. v. Brierly 14 0. R. 535.
In the case of R. v. McQuiggan, 2 L. C. R., Note, 346,
the proof of the first marriage was attempted to be made
by the voluntary examination of the accused, taken before
Thomas Clancy, the committing magistrate ; but this being
irregular and defective, its reception was successfully
objected to by the counsel for the prisoner. The Crown
then tendered the evidence of Mr. Clancy as to the
story the prisoner told him when taken before him after
his arrest. This the Court held to be good evidence, and
allowed it to go to the jury ; this was the only evidence
of the first marriage, the prisoner having on that occasion,
as Mr. Clancy deposed, confessed to him that he was guilty
of the offence, as charged, and at the same time expressed
his readiness to return and live with his first wife. The
second marriage was proved by the evidence of the clergy,
man who solemnized it.
In R. v. Creamer, 10 L. C. R. 404, upon a case reserved,
the Court of Queen's Bench ruled, that upon the trial of an
indictment for bigamy, the admission of the first marriage
by the prisoner, unsupported by other testimony, is suffi-
cient to support a conviction.
In R. v. Newton, 2 Moo. C. C. 503, and R. v. Sim-
monds, 1 C. & K, 164, Wightman, J., held that the pris-
oner's admissions, deliberately made, of a prior marriage
in a foreign country, are sufficient evidence of such mar-
riage, without proving it to have been celebrated accord-
MARRIAGE, BIGAMY, ETC. 79
ing to the law of the country where it is stated to have
taken place. — Contra, in R. v. Savage, 13 Cox, 178.
A first marriage, though voidable, if not absolutely void,
will support an indictment for bigamy. — Archbold, 886.
As to the second marriage, it is immaterial whether it
took place in Canada, or elsewhere, provided, if it took
place out of Canada, the defendant be a subject of Her
Majesty resident in Canada, whence he had left to com-
mit the offence.
It seems that the offence will be complete, though the
defendant assume a fictitious name at the second mar-
riage.— R. v. Allison, R. &• R., 109.
Same ruling on a case reserved, in R. v. Rea, 12 Cox,
190.
Though the second marriage would have been void,
in any case, as for consanguinity or the like, the defendant
is guilty of bigamy. — R. v. Brown, 1 C. & K. 144.
In K. v. Fanning, 10 Cox, 411, a majority of the
judges of the Irish Court of Criminal Appeal held, con-
trary to K. v. Brown, that to constitute the offence of
bigamy, the second marriage must have been one which,
but for the existence of the previous marriage, would
have been a valid marriage, but the English Court of
Criminal Appeal, by sixteen judges, in E. v. Allen, 12
Cox, 193, since decided, as in E. v. Brown, that the inva-
lidity of the second marriage, on account of relationship,
does not prevent its constituting the crime of bigamy.
It must be proved that the first wife was living at the
time the second marriage was solemnized ; which may
be done by some person acquainted with her and who
saw her at the time or afterwards. — Archbold, 887. On
a prosecution for bigamy, it is incumbent on the prosecu-
tor to prove that the husband or wife, as the case may
80 MARRIAGE, BIGAMY, ETC.
be, was alive at the date of the second marriage. There
is no presumption of law of the continuance of the life
of the party for seven years after the date at which he
or she was proved to have been alive. The existence of
the party at an antecedent period may or may not afford
a reasonable inference that he or she was alive at the
date of the second marriage ; but it is purely a question
of fact for the jury. — R. v. Lumley, 11 Cox, 274.
On the trial of a woman for bigamy, whose first hus-
band had been absent from her for more than seven years,
the jury found that they had no evidence that at the time
of her second marriage she knew that he was alive ; but
that she had the means of acquiring knowledge of that
fact, had she chosen to make use of them. It was held
that upon this finding, the conviction could not be sup-
ported.— R. v. Briggs, Dears, and B., 98.
On this last case, Greaves, 1 Russell, 270, note 1,
remarks : " The case was argued only on the part of the
prisoner, and the Court studiously avoided determining
on which side the onus of proof as to the knowledge of
the first husband being alive lay, and yet the point seems
very clear. It is plain that the latter part of the section
in the 9 Geo. 4, c. 31, s. 22, and in the new Act is in
the nature of proviso. Now no rule is better settled than
that if an exception comes by way of proviso, whether it
occurs in a subsequent part of the Act, or in a subsequent
part of the same section containing the enactment of the
offence, it must be proved in evidence by the party relying
upon it. Hence it is that no indictment for bigamy ever
negatives the exceptions as contained in the proviso, and
hence it follows that the proof of those exceptions lies on
the prisoner; if it was otherwise, the prosecutor would
have to prove more than he has alleged. Then the proviso
MARRIAGE, BIGAMY, ETC. 81
in terms requires proof both of the absence of the party
for seven years, and that the party shall not have been
known by the prisoner to have been living within that
time, and consequently it lies on the prisoner to give
evidence of both ; and as the Legislature has required
proof of both, it ne\rer could have been intended that proof
of the one should be sufficient evidence of the other.
"When, howjver, the prisoner has given evidence to nega-
tive his knowledge that the party is alive, the onus may
be thrown on the prosecutor to show that he had that
knowledge; and in accordance with this view is the
dictum of Willes, J., in R v. Ellis, 1 F. and F. 309,
that ' if the husband has been living apart from his wife
for seven years, under such circumstances as to raise a
probability that he supposed that she was dead when he
was re-married, evidence may be necessary that he knew
his first wife was alive.' As to the manner in which the
case should be left to the jury, it should seem that the
proper course is to ask them whether they are satisfied
that the prisoner was married twice, and that the person
whom he first married was alive at the time of the second
marriage ; and, if they are satisfied of these facts, to tell
them that it then lies upon the prisoner to satisfy them
that there was an absence for seven years, and also that
during the whole of those seven years he was ignorant
that his first wife was alive, and that unless he has proved
both those facts to their satisfaction they ought to con-
vict him. It is perfectly clear that the question is not
whether he knew that his first wife was alive at the time
of the second marriage, for be may have known that she
was alive within the seven years, and yet not know that
she was alive at the time of the second marriage, and, if
he knew that she was alive at any time within the seven
years, he ought to be convicted."
G
82 MARRIAGE, BIGAMY, ETC.
On E. v. Turner, 9 Cox 145, Greaves, 1 Eussell, 273,
note w, says : "This is the first case in which it has ever
been suggested that the belief of the death of the first
husband or wife was a defence, and the case is probably
misreported. The proviso that requires absence for seven
years and ignorance of the first husband or wife being
alive during the whole of that time, clearly shows that
this case cannot be supported."
If it appears that the prisoner and his first wife had
lived apart for seven years before he married again, mere
proof that the first wife was alive at the time of the second
marriage will not warrant a conviction, but some affir-
mative evidence must be given to show that the accused
was aware of this fact. — R. v. Curgerwen, 10 Cox, 152;
R. v. Fontaine, 15 L. C. J. 141, See R. v. Jones, 15
Cox, 284.
In 1863, the prisoner married Mary Anne Eichards,
lived with her about a week and then left her. It was not
proved that he had since seen her. In 1867, he mairied
Elizabeth Evans, his first wife being then alive. The
Court left it to the jury to declare if they were satisfied
that the prisoner knew his first wife was alive at the time
of the second marriage, and ruled that positive proof on
that point was not absolutely necessary. The prisoner
was found guilty, and, on a case reserved the conviction
was affirmed. — R. v. Jones, 11 Cox, 358.
In E. v. Horton, 11 Cox, 670, Cleasby, B., summed
up as follows : " It is submitted that, although seven years
had not passed since the first marriage, yet if the prisoner
reasonably believed (which pre-supposes proper grounds of
belief) that his first wife was dead, he is entitled to an
acquittal. It would press very hard upon a prisoner if
under such circumstances he could be convicted, when it
MARRIAGE, BIGAMY, ETC. 83
appeared to him as a positive fact that his first wife was
dead. The case of E. v. Turner, 9 Cox, 145, shows
that this was the view of Baron Martin, a judge of as
great experience as any on the bench now, and I am not
disposed to act contrary to his opinion. You must find
the prisoner guilty, unless you think that he had fair and
reasonable grounds for believing, and did honestly believe,
that his first wife was dead." The jury returned a verdict
of guilty, and the judge sentenced the prisoner to impris-
onment for three days, remarking that he was quite satis-'
fled with the verdict, and that he should inflict a light
sentence, as he thought the prisoner really believed his
first wife was dead, although he was not warranted in
holding that belief. — See, ante, Greaves' remarks on R.
v. Turner.
But in a later case, R. v. Gibbons, 12 Cox, 237, it was
held, Brett and Willes, J. J., that bond fide belief that
the first husband was dead was no defence by a woman
accused of bigamy, unless he has been continuously absent
for seven years. Same ruling, R. v. Bennett, 14 Cox, 45.
Contra, R. v. Moore, 13 Cox, 544.
On an indictment for bigamy, a witness proved the first
marriage to have taken place eleven years ago, and that
the parties lived together some years, but could not say
how long, it might be four years. Wightman, J., said :
I How is it possible for any man to prove a negative ?
How can I ask the prisoner to prove that he did not know
that his wife was living ?" There is no evidence that the
prisoner knew that his wife was alive, and there is no
offence proved. — R. v. Eeaton, 3 F. & F. 819.
Sec 16 of the Procedure Act provides that the offender
may be tried in the district, county or place, where he is
apprehended or is in custody. But this provision is only
84 MAKKIAGE, BIGAMY, ETC.
cumulative, and the party may be indicted where the second
marriage took place, though he be not apprehended ; for
in general where a statute directs that the offender may be
tried in the county, district or place in which he is appre-
hended, but contains no negative words, he may be tried
where the offence was committed. — 1 Russ. 274.
The averment of the prisoner's apprehension, as in the
form given, ante, is only necessary where the second mar-
riage took place in another district than where the defen-
dant is indicted. — Archbold, 883.
In R. v, McQuiggan, 2 L. C. E., 340, the Court ruled
that in an indictment for bigamy, under the Canadian
Statute, it is absolutely necessary, when the second
marriage has taken place in a foreign country, that the
indictment should contain the allegations that the accused 1
is a British subject, that he is or was resident in this
Province, and that he left the same with intent to commit]
the offence. — See also R. v. Pierce, post.
On a trial for bigamy, the Crown having proved the pris
oner's two marriages, it is for him then to prove the absenc
of his first wife during seven years preceding the seconc
marriage; and when such absence is not proved, it is not
incumbent on the Crown to establish the prisoner's know-
ledge that the first wife was living at the time of the
second marriage. — R. v. Dwyer, 27 L. C. J. 201. See R.
Wiltshire, 14 Cox, 541.
The prisoner was convicted of bigamy under 32-33
c. 20, s. 58. The first marriage was contracted in Toronto
and the second in Detroit. The judge at the trial directed
the jury that if prisoner was married to his first wife ill-
Toronto and to his second in Detroit, they should find him
guilty.
Held, a misdirection, and that the jury should have been
MAERIAGE, BIGAMY, ETC. 85
told, in addition, that before they found him guilty they
ought to be satisfied of his being, at the time of his second
marriage, a subject of Her Majesty resident in Canada,
and that he had left Canada with intent to commit the
offence.
Held, also, that it was incumbent on the Crown to prove
these facts.
Quaere, per Wilson, C. J., whether the trial should not
have been declared a nullity. — The Queen v. Pierce, 13
0. R. 226.
OFFENCES AGAINST THE PERSON.
MUKDEIl AND MANSLAUGHTER.
The law takes no cognizance of homicide unless death
result from bodily injury, occasioned by some act or
unlawful omission, or contra-distinguished from death
occasioned by any influence on the mind, or by any disease
arising from such influence. The terms " unlawful
omission" comprehend every case where any one, being
under any legal obligation to supply food, clothing or
other aid or support, or to do any other act, or make any
other provision for the sustentation of life, or prevention
of injury to life, is guilty of any breach of duty. It is
essential to homicide of which the law takes cognizance
that the party die of the injury done within one year and
a day thereafter. In the computation of the year and the
day from the time of the injury, the whole of the day on
which the act was done, or of any day on which the cause
of injury was continuing, is to be reckoned the first. A
child in the womb is not a subject of homicide in respect
of any injury inflicted in the womb, unless it afterwards be
born alive ; it is otherwise if a child die within a year and
a day after birth of any bodily injury inflicted upon such
child, whilst it was yet in the womb. — 4 Cr. L. Com.
Report, p. XXXII, 8th of March, 1839.
If a man have a disease which in all likelihood would
terminate his life in a short time, and another give him a
wound or hurt which hastens his death, it is murder or
other species of homicide as the case may be. And it has
been ruled that though the stroke given is not in itself so
mortal, but that with good care it might be cured, yet if
OFFENCES AGAINST THE PERSON. §7
the party die of this wound within a year and a day, it is
murder or other species of homicide as the case may be.
And when a wound, not in itself mortal, for want of proper
applications or from neglect, turns to a gangrene or a fever,
and that gangrene or fever is the immediate cause of the
death of the party wounded, the party by whom the
wound is given is guilty of murder or manslaughter,
according to the circumstances. For though the fever or
gangrene, and not the wound, be the immediate cause of
death, yet the wound being the cause of the gangrene or
fever is the immediate cause of the death, causa causati.
So if one gives wounds to another, who neglects the cure
of them or is disorderly, and doth not keep that rule which
a person wounded should do, yet if he die, it is murder or
manslaughter, according to the circumstances : because if
the wounds had not been, the man had not died ; and there-
fore neglect or disorder in the person who received the
wounds shall not excuse the person who gave them. — 1
Russ. 700.
So if a man be wounded, and the wound become fatal
from the refusal of the party to submit to a surgical ope-
ration.—E. v. Holland, 2 M. & Eob. 351; K. v. Pym,
1 Cox, 339 ; E. v. Mclntyre, 2 Cox, 379 ; E. v. Martin,
5 C. & P. 128 ; E. v. Webb, 1 M. & Eob. 405. But it
is otherwise if death results not from the injury done,
but from unskilful treatment, or other cause subsequent
to the injury. — Uh Rep. Or. L. Comrs., p. XXXII, 8th
of March, 1839.
Murder is the killing any person under the king's peace,
with malice prepense or aforethought, either express or
implied by law. Of this description the malice prepense,
malitia precogitata, is the chief characteristic, the grand
criterion by which murder is to be distinguished from any
88 OFFENCES AGAINST THE PEESON.
other species of homicide, and it will therefore be necessary
to inquire concerning the cases in which such malice has
been held to exist. It should, however, be observed that
when the law makes use of the term malice aforethought,
as descriptive of the crime of murder, it is not to be
understood merely in the sense of a principle of malevo-
lence to particulars, but as meaning that the act has been
attended with such circumstances as are the ordinary
symptoms of a wicked, depraved, and malignant spirit; a
heart regardless of social duty, and deliberately bent upon
mischief. And in general any formed design of doing mis-
chief may be called malice. And, therefore, not such killing
only as proceeds from premeditated hatred or revenge
against the person killed, but also, in many other cases,
such killing as is accompanied with circumstances that
show the heart to be perversely wicked is adjudged to be
of malice prepense and consequently murder. — 1 Rtcss.
667.
Malice may be either express or implied by law. Ex-
press malice is, when one person kills another with a
sedate deliberate mind and formed design ; such formed
design being evidenced by external circumstances dis-
covering the inward intention ; as lying in wait, antece-
dent menaces, former grudges, and concerted schemes to
do the party some bodily harm. And malice is implied
by law from any deliberate cruel act committed by one
person against another, however sudden ; thus, where a
man kills another suddenly without any, or without a
considerable provocation, the law implies malice ; for no
person, unless of an abandoned heart, would be guilty
of such an act upon a slight or no apparent cause. So if
a man wilfully poisons another ; in such a deliberate act
the law presumes malice, though no particular enmity be
OFFENCES AGAINST THE PERSON. 89
proved. And where one is killed in consequence of such
a wilful act as shows the person by whom it is committed
to be an enemy to all mankind, the law will infer a gene-
ral malice from such depraved inclination to mischief. And
it should be observed as a general rule, that all homicide is
presumed to be malicious, and of course amounting to
murder, until the contrary appears, from circumstances of
alleviation, excuse or justification ; and that it is incum-
bent upon the prisoner to make out such circumstances to
the satisfaction of the court and jury, unless they arise out
of the evidence produced against him. It should also be
remarked that, where the defence rests upon some violent
provocation, it will not avail, however grievous such pro-
vocation may have been, if it appears that there was an
interval of reflection, or a reasonable time for the blood to
have cooled before the deadly purpose was effected. And
provocation will be no answer to proof of express malice :
so that, if, upon a provocation received, ono party deliber-
ately and advisedly denounce vengeance against the other,
as by declaring that he will have his blood, or the like, and
afterwards carry his design into execution, he will be
guilty of murder ; although the death happened so recent-
ly after the provocation as that the law might, apart from
such evidence of express malice, have imputed the act to
unadvised passion. But where fresh provocation inter-
venes between preconceived malice and the death, it ought
clearly to appear that the killing was upon the antecedent
malice ; for if there be an old quarrel between A. and B.
and they are reconciled again, and then upon a new and
sudden falling out, A. kills B. this is not murder. It isnot
to be presumed that the parties fought upon the old grudge,
unless it appear from the whole circumstances of the fact ;
but if upon the circumstances it should appear that the
90 OFFENCES AGAINST THE PERSON.
reconciliation was but pretended or counterfeit, and that
the hurt done was upon the score of the old malice, then
such killing will be murder. — 1 Buss. 667.
If a man, after receiving a blow, feigns a reconciliation,
and, after the lapse of a few minutes, iuvites a renewal of
the aggression, with intent to use a deadly weapon, and on
such renewal, uses such weapon with deadly effect, there
is evidence of implied malice to sustain the charge of
murder. But if, after such reconciliation, the aggressor
renews the contest, or attempts to do so, and the other
having a deadly weapon about him, on such sudden
renewal of the provocation, uses it without previous intent
to do so, there is evidence which may reduce the crime
to manslaughter. — jR. v. Selton, 11 Cox, 674. Mr. Justice
Hannen in his charge to the jury in that case said : u Now,
murder is killing with malice aforethought ; but though
the malice may be harbored for a long time for the grati-
fication of a cherished revenge, it may, on the other hand,
be generated in a man's mind according to the character of
that mind, in a short space of time, and therefore it
becomes the duty of the jury in each case to distinguish
whether such motive had arisen in the mind of the prisoner,
and whether it was for the gratification of such malice he
committed the fatal act. But the law, having regard to
the infirmity of man's nature, admits evidence of such
provocation as is calculated to throw a man's mind off its
balance, so as to show that he committed the act while
under the influence of temporary excitement, and thus to
negative the malice which is of the essence of the crime of
murder. It must not be a light provocation, it must be a
grave provocation ; and undoubtedly a blow is regarded by
the law as such a grave provocation ; and supposing a
deadly stroke inflicted promptly upon such provocation, a
OFFENCES AGAINST THE PERSON. 91
jury would be justified in regarding the crime as reduced
to manslaughter. But if such a period of time has elapsed
as would be sufficient to enable the mind to recover its
balance, and it appears that the fatal blow has been struck
in the pursuit of revenge, then the crime will be murder."
Verdict of manslaughter.
In a case of death by stabbing, if the jury is of opinion
that the wound was inflicted by the prisoner, while smart-
ing under a provocation so recent and so strong that he
may be considered as not being at the moment the master
of his own understanding, the offence will be manslaughter ;
but if there has been, after provocation, sufficient time for
the blood to cool, for reason to resume its seat, before the
mortal wound was given, the offence will amount to
murder ; and if the prisoner displays thought, contrivance
and design in the mode of possessing himself of the weapon,
and in again replacing it immediately after the blow was
struck, such exercise of contrivance and design denotes
rather the presence of judgment and reason than of violent
and ungovernable passion. — R. v. Maynard, 6 C. <t P«
157.
Where a man finds another in the act of adultery with
his wife, and kills him or her in the first transport of
passion, he is only guilty of manslaughter and that in the
lowest degree ; for the provocation is grievous, such as the
law reasonably concludes cannot be borne in the first
transport of passion ; and the Court in such cases will not
inflict a severe punishment. — 1 Russ. 786.
So it seems that if a father were to see a person in the
act of committing an unnatural offence with his son and
were instautly to kill him, it would only be manslaughter.
— R. v. Fisher, 8 C. & P. 182.
But in the case of the most grievous provocation to
92 OFFENCES AGAINST THE PERSON.
which a man can be exposed, that of finding another in the
act of adultery with his wife, though it would be but
manslaughter if he should kill the adulterer in the first
transport of passion, yet if he kill him deliberately, and
upon revenge, after the fact, and sufficient cooling time, it
would undoubtedly be murder. For let it be observed
that in all possible cases, deliberate homicide upon a prin-
ciple of revenge is murder. No man under the protection
of the law is to be the avenger of his own wrongs. If they
are of a nature for which the laws of society will give him
an adequate remedy, thither he ought to resort ; but be
they of what nature soever, he ought to bear his lot with
patience, and remember that vengeance belongeth only to
the Most High.— Foster, 296.
So, in the case of a father seeing a person in the act of
committing an unnatural offence with his son, and killing
him instantly, this would be manslaughter, but if he only
hears of it, and goes in search of the person, and meeting
him strikes him with a stick, and afterwards stabs him
with a knife, and kills him, in point of law, it will be
murder— £. v. Fisher, 8 C. & P. 182.
In this last case, the Court said : " Whether the blood
has had time to cool or not is a question for the court and
not for the jury, but it is for the jury to find what length
of time elapsed between the provocation received and the
act done. 1 Russ. 725. But Greaves, note d, loc. cit., ques-
tions this dictum, and refers to R. v. Lynch, 5 C. & P.
324, and R. v. Maynard, supra, where Tenterden and
Tindal left it to the jury to say if the blood had had time
to cool or not.
If a blow without provocation is wilfully inflicted, the
law infers that it was done with malice aforethought, and
if death ensues the offender is guilty of murder, although
OFFENCES AGAINST THE PEKSON. 93
the blow may have been given in a moment of passion.
— R. v. Xoon, 6 Cox, 137.
Even blows previously received will not extenuate
homicide upon deliberate malice and revenge, especially
where it is to be collected from the circumstances that the
provocation was sought for the purpose of coloring the
revenge.— R. v. Mason, 1 East, P. C. 239.
In E. v. Welsh, 11 Cox, 336, Keating, J., in sum-
ming up the case to the jury, said : "The prisoner is
indicted for that he killed the deceased feloniously and
with malice aforethought, that is to say, intentionally,
without such provocation as would have excused, or such
cause as might have justified the act. Malice aforethought
means intention to kill. Whenever one person kills another
intentionally, he does it with malice aforethought ; in
point of law, the intention signifies the malice. It is for
him to show that it was not so by showing sufficient provo-
cation, which only reduces the crime to manslaughter,
because it tends to negative the malice. But when that
provocation does not appear, the malice aforethought
implied in the intention remains. By the law of England,
therefore, all intentional homicide is primd facie murder.
It rests with the party charged with and proved to have
committed it to show, either by evidence adduced for the
purpose, or upon the facts as they appear, that the homi-
cide took place under such circumstances as to reduce
the crime from murder to manslaughter. Homicide which
. would be primd facie murder may be committed under
such circumstances of provocation as to make it man-
slaughter, and show that it was not committed with malice
aforethought. The question therefore is, first, whether there
is evidence of any such provocation as could reduce the
crime from murder to manslaughter ; and if there be any
94 OFFENCES AGAINST THE PERSON.
such evidence, then it is for the jury, whether it was such
that they can attribute the act to the violence of passion
naturally arising therefrom and likely to be aroused
thereby in the breast of a reasonable man. The law, there-
for?, is not, as was represented by the prisoner's counsel,
that if a man commits the crime under the influence of
passion it is mere manslaughter. The law is, that there
must exist such an amount of provocation as would be
excited by the circumstances in the mind of a reasonable
man, and so as to lead the jury to ascribe the act to
the influence of that passion. When the law says that
it allows for the infirmity of human nature, it does not
say that if a man without sufficient provocation gives way
to angry passion, and does not use his reason to control
it, — the law does not say that an act of homicide inten-
tionally committed under the influence of that passion is
excused, or reduced to manslaughter. The law contem-
plates the case of a reasonable man, and requires that the
provocation shall be such as that such a man might
naturally be induced, in the anger of the moment, to
commit the act. Now, I am bound to say that I am unable
to discover in the evidence in this case any provocation
which would suffice, or approach to such as would suffice*
to reduce the crime to manslaughter. It has been laid down
that mere words or gestures will not be sufficient to reduce
the offence, and at all events the law is clear that the
provocation must be serious. I have already said that I
can discover no proof of such provocation in the evidence/
If you can discover it, you can give effect to it, but you
are bound not to do so unless satisfied that it was serious.
What I am bound to tell you is that, in law, it is necessary
that there should have been serious provocation in order
to reduce the crime to manslaughter, as for instance a blow,
OFFENCES AGAINST THE PERSON. 95
and a severe blow, something which might naturally cause
an ordinary and reasonably minded man to lose his self-
control and commit such an act." Verdict : Guilty of murder.
So also if a man be greatly provoked, as by pulling
his nose or other great indignity, and immediately kills
the aggressor, though he is not excusable se defendendo,
since there is no absolute necessity for doing it to pre-
serve himself, yet neither is it murder for there is no pre-
vious malice : but it is manslaughter. But in this and
every other case of homicide upon provocation, if there
be a sufficient cooling time for passion to subside and
reason to interpose, and the person so provoked after-
wards kill the other, this is deliberate revenge and not
heat of blood, and accordingly amounts to murder. — 4
Blackstone, 191.
A packer found a boy stealing wood in his master's
ground ; he bound him to his horse's tail and beat him ;
the horse took fright and ran away, and dragged the boy
on the ground so that he died. This was holden to be
murder, for it was a deliberate act and savored of cruelty.
—Foster, 292.
At page 632 of Archbold, is cited, R. v. Rowley ; a boy
after fighting with another ran home bleeding to his father,
the father immediately took a staff, ran three-quarters of
a mile, and beat the other boy who died of this blow.
And this was holden to be manslaughter only. But Mr.
Justice Foster, 294, says that he always thought Rowley's
case a very extraordinary one.
Though the general rule of law is that provocation
by words will not reduce the crime of murder to that of
manslaughter, special circumstances attending such a pro-
vocation might be held to take the case out of the general
rule. In R. v. Rothwell, 12 Cox, 147, Blackburn, J.,
96 OFFENCES AGAINST THE PERSON.
in summing up, said : " A person who inflicts a danger-
ous wound, that is to say a wound of such a nature as he
must know to be dangerous, and death ensues, is guilty
of murder ; but there may be such heat of blood and pro-
vocation as to reduce the crime to manslaughter. .A blow
is such a provocation as will reduce the crime of murder
to that of manslaughter. Where, however, there are no
blows, there must be a provocation equal to blows ; it
must be at least as great as blows. For instance a man
who discovers his wife in adultery, and thereupon kills
the adulterer, is only guilty of manslaughter. As a
general rule of law, no provocation of words will reduce
the crime of murder to that of manslaughter ; but under
special circumstances there may be such provocation of
words as will have that effect, for instance, if a husband,
suddenly hearing from his wife that she had committed
adultery, and he having no idea of such a thing before,
were thereupon to kill his wife, it might be manslaughter
Now, in this case, words spoken by the deceased just
previous to the blows inflicted by the prisoner were these :
' Aye ; but I'll take no more for thee, for I will have
no more children of thee ; I have done it once, and I'll do
it again,' meaning adultery. Now, what you will have
to consider is, would these words, which were spoken
just previous to the blows, amount to such a provocation
as would in an ordinary man, not in a man of violent or
passionate disposition, provoke him in such a way as to
justify him in striking her as the prisoner did.'' Verdict
of manslaughter.
In Sherwood's case, 1 C. & K. 556, Pollock, C. B., in
summing up said : " It is true that no provocation by
words only will reduce the crime of murder to that of
manslaughter; but it is equally true that every provo-
OFFENCES AGAINST THE PERSON. 97
cation by blows will not have this effect, particularly
when, as in this case, the prisoner appears to have resent-
ed the blow by using a weapon calculated to cause death.
Still, however, if there be a provocation by blows, which
would not of itself render the killing manslaughter, but
it be accompanied by such provocation by means of
words and gestures as would be calculated to produce a
degree of exasperation equal to that which would be pro-
duced by a violent blow, I am not prepared to say that
the law will not regard these circumstances as reducing
the crime to that of manslaughter only."
When A, finding a trespasser upon his land, in the first
transport of his passion, beat him and unluckily killed him,
and it was holden to be manslaughter, it must be understood
that he beat the trespasser, not with a mischievous inten-
tion, but merely to chastise him, and to deter hirn from a
future commission of such a trespass. For if A had knock-
ed his brains out with a bill or hedge stake, or had killed
him by an outrageous beating with au ordinary cudgel,
beyond the bounds of a sudden resentment, it would have
been murder ; these circumstances being some of the gen-
uine symptoms of the mala mens, the heart bent upon
mischief, which enter into the true notion of malice in the
legal sense of the word. Moir having been greatly annoyed
by persons trespassing upon his farm, repeatedly gave no-
tice that he would shoot any one who did so, and at length
discharged a pistol at a person who was trespassing, and
wounded him in the thigh, which led to erysipelas, and the
man died. Moir was convicted of murder and executed.
— 1 Puiss. 718.
As there are very many nice distinctions upon this sub-
ject of malice prepense, express and implied, the following
additional quotations are given here.
H
98 OFFENCES AGAINST THE PERSON.
Malitia in its proper or legal sense, is different from
that sense which it bears in common speech. In common
acceptation, it signifies a desire of revenge, or a settled
anger against the particular person ; but this is not the
legal sense, and Lord Holt, C. J., says :(." Some have been
led into mistakes by not well considering what the passion
of malice is ; they have construed it to be a rancour of mind
lodged in the person killing for some considerable time be-
fore the commission of the fact, which is a mistake, arising
from the not well distinguishing between hatred and malice.
Envy, hatred and malice are three distinct passions of the
mind. 1. Envy properly is a repining or being grieved at
the happiness and prosperity of another, Invidus alte-
rius rebus macrescit opimis. 2. Hatred which is odium,
is as Tully said, ira inveterata, a rancour fixed and settled
in the mind of one towards another which admits of seve-
ral degrees. 3. Malice is a design formed of doing mischief
to another ; cum quis data opera male agit, he that
designs and useth the means to do ill is malicious ; he that
doth a cruel act voluntarily doth it of malice prepensed."
— Kelyng's C. C. Stevens & Haynes1 reprint, 174.
But the meaning of the words " malice aforethought " is
not to be determined in the same way as if they were found
in a statute just enacted, and had never been construed.
On the other hand, they were employed in a Statute on
this subject as far back as 1389, were found also in several
other early Statutes, and were first construed at a time
when the Courts took more liberties with Statutes than
they do now. Thus, it is said in an old book, " He that
doth a cruel act voluntarily doth it of malice prepensed.''
The doctrine was long ago and is now established
that to constitute the malice prepensed or aforethought,
which distinguishes murder from manslaughter, the slayer
OFFENCES AGAINST THE PERSON. 99
need not have contemplated the injury beforehand, and
need at no time have intented to take life. If he specifi-
cally meant not death, but bodily harm of a certain stan-
dard in magnitude or kind, or if he purposely employed a
certain weapon, or did certain acts from which the law
implies malice, the offence is murder when death follows
within a year and a day, the same as though he intended
to kill. The actual intent is in many circumstances an
important element; but there may be murder as well
without as with a murderous mind, and especially the fatal
result need not be predetermined. Thus the words "malice
aforethought" have a technical legal meaning, differing
considerably from the popular idea of them. — Bishop,
Stat. Cr. 467.
Malice in its legal sense denotes a wrongful act done
intentionally, without just cause or excuse. Per Little-
dale, J., in McPherson v. Daniels, 10 B. & C. 272, and
approved of by Cresswell, J., in E. v. Noon, 6 Cox, 137.
We must settle what is meant by the term malice. The
legal import of this term differs from its acceptation in
common conversation. It is not, as in ordinary speech,
only an expression of hatred and ill-will to an individual,
but means any wicked or mischievous intention of the
mind.
Thus, in the crime of murder which is always stated m
the indictment to be committed with malice aforethought,
it" is neither necessary in support of such indictment to
show that the prisoner had any enmity to the deceased,
nor would proof of absence of ill-will furnish the accused
with any defence, when it is proved that the act of killing
was intentional and done without any justifiable cause, —
Per Best, J., in E. v. Harvey, 2 B. & C. 268.
The nature of implied malice is illustrated by ±he maxim
" Culpa lata dolo wquiparatur."
100 OFFENCES AGAINST THE PERSON.
Malice aforethought, which makes a felonious killing
murder, may be practically defined to be not actual malice
or actual aforethought, or any other particular actual state
of the mind, but any such combination of wrongful deed
and mental culpability as judicial usage has determined to
be sufficient to render that murder which else would be
only manslaughter One proposition is plain: that an
actual intent to take life is not a necessary ingredient in
murder, any more than it is in manslaughter. Where the
prisoner fired a loaded pistol at a person on horseback, and
the ball took effect on another, whose death it caused, the
offence was held to be murder ; though the motive for fir-
ing it was not to kill the man, but only to frighten his
horse, and cause the horse to throw him. — 2 Bishop, Cr. L.
675, 676, 682.
In Grey's case, the defendant, a blacksmith, had broken,
with a rod of iron, the skull of his servant, whom he did
not mean to kill, and this was held to be murder ; for,
says the report, if a father, master, or school-master will
correct his child, servant or scholar, he must do it with
such things as are fit for correction, and not with such
instruments as may probably kill them. — Kelyng, C. C.
Stevens & Haynes reprint, 99.
A person driving a cart or other carriage happeneth to
kill. If he saw or had timely notice of the mischief likely
to ensue, and yet drove on, it will be murder ; for it was
wilfully and deliberately done. If he might have seen
the danger, but did not look before him, it will be man-
slaughter for want of due circumspection. But if the
accident happened in such a manner that no want of due
care could be imputed to the driver, it will be accidental
death, and the driver will be excused. — Foster, 263.
Further, if there be an evil intent, though that intent
OFFENCES AGAINST THE PERSON. 10 L
extendetb not to death, it is murder. Thus if a man,
knowing that many people are in the street, throw a stone
over a wall, intending only to frighten them or to give
them a little hurt, and thereupon one is killed, this is mur-
der : for he had an ill intent, though that intent extendeth
not to death, and though he knew not the party slain.
—3 Instil 57.
Although the malice in murder is what is called "rued ice
aforethought" yet there is no particular period of £ime
during which it is necessary it should have existed, or the
prisoner should have contemplated the homicide. If, for
example, the intent to kill or to do other great bodily harm
is excuted the instant it springs into the mind, the offence
is as truly murder as if it had dwelt there for a longer
period. — 2 Bishop, Or, L. 677.
Where a person fires at another a fire-arm, knowing it
to be loaded, and therefore intending either to kill or to do
grievous bodily harm, if death ensues the crime is murder ;
and if in such case, the person who fires the weapon, though
he does not know that it is loaded, has taken no care to
ascertain, it is manslaughter. — R. v. Campbell, 11 Cox, 323.
If an action, unlawful in itself, be done deliberately, and
with intention of mischief or great bodily harm to parti-
cular individuals, or of mischief indiscriminately, fall
where it may, and death ensue against or beside the ori-
ginal intention of the party, it will be murder. 1 Muss.
739. If a man deliberately shoot at A and miss him, but
kill B, this is murder. 1 Hale, 438. So where A gave
a poisoned apple to his wife, intending to poison her, and
the wife, ignorant of the matter, gave it to a child who
took it and died, this was held murder in A, though he,
being present, at the time, endeavored to dissuade his wife
from giving the apple to the child. — Hale, loc. cit.
102 OFFENCES AGAINST THE PERSON.
So if a person give medicine to a woman to procure an
abortion, by which the woman is killed, the act was held
clearly to be murder, for, though the death of the woman
was not intended, the act is of a nature deliberate and ma-
licious, and necessarily attended with great danger to the
person on whom it was practised. 1 East, P. G. 230, 254.
Whenever one does an act with the design of commit-
ting any felony, though not a felony dangerous to human
life, yet, if the life of another is accidentally taken, his
offence is murder. So if a man set fire to a house, where-
by a person in it is burned to death, he is guilty of murder,
even if he had no idea that any one was or was likely to
be there. 1 Russ. 741.
In K. v. Lee, 4 F. & F. 68, Pollock, C. B., told the
jury " that if two or more persons go out to commit a
felony with intent that personal violence shall be used in
its committal, and such violence is used and causes death,
then they are all guilty of murder, even although death
was not intended."
Also, where the intent is to do some great bodily harm
to another and death ensues, it will be murder ; as if A
intend only to beat B in anger, or from preconceived
malice, and happen to kill him, it will be no excuse that
he did not intend all the mischief that followed ; for what
he did was malum in se, and he must be answerable for
all its consequences ; he beat B with an intention of doing
him some bodily harm, and is therefore answerable for all
the harm he did. So, if a large stone be thrown at one
with a deliberate intention to hurt, though not to kill him,
and, by accident, it kill him, or any other, this is murder.
—1 Russ. 742.
Where two persons go out with the common object of
robbing a third person, and one of them, in pursuit of that
OFFENCES AGAINST THE PERSON. 103
common object, does an act which causes the death of that
third person, under such circumstances as to be murder in
him who does the act, it is murder in the other also. — R.
v. Martin, 7 Cox, 357.
CASES ILLUSTRATIVE OF GENERAL PRINCIPLES.
If a man intends to maim and causes death, and it can
be made out most distinctly that he did not mean to kill,
yet if he does acts and uses means for the purpose of
accomplishing that limited object, and they are calculated
to produce death, and death ensues, by the law of Eng-
land, that is murder, although the man did not mean to
kill. It is not necessary to prove an intention to kill ; it
is only necessary to prove an intention to inflict an
injury that might be dangerous to life, and that it resulted
in death. A party may be convicted upon an indictment
for murder by evidence that would have no tendency to
prove that there was any intent to kill, nay, by evidence
that might clearly show that he meant to stop short of
death, and even take some means to prevent death ; but
if that illegal act of his produces death, that is murder. —
R. v. Salvi, 10 Cox, note b, 481.
" A common and plain rule on this subject," says
Bishop, 2 Cr. L. 694, ■ is, that, whenever one does an
act with the design of committing any felony, though not
a felony dangerous to human life, yet, if the life of an-
other is accidentally taken, his offence is murder." Or in
the language of Baron Bramwell, in R. v. Horsay, 3 F.
& F. 287 : " the law laid down was that where a prisoner,
in the course of committing a felony, caused the death of
a human being, that was murder, even though he did not
intend it."
And if the act committed or attempted is only a mis-
demeanor, yet the " accidental n causing of death, in
104 OFFENCES AGAINST THE PERSON.
consequence of this act, is murder, if the misdemeanor is
one endangering human life. — Bishop, 2 Cr. L. 691.
If a large stone be thrown at one with a deliberate in-
tention to hurt, though not to kill him, and, by accident,
it kill him, or any other, this is murder. — 1 Hale, 440, 1
Muss. 742. Also, where the intent is to do some great
bodily harm to another, and death ensues, it will be mur-
der : as if A intend only to beat B in anger, or from pre-
conceived malice, and happen to kill him, it will be no
excuse that he did not intend all the mischief that fol-
lowed : for what he did was malum in se, and he must be
answerable for all its consequences : he beat B with an
intention of doing him some bodily harm, and is therefore
answerable for all the harm he did. In Foster, 261, it is
said : " If an action unlawful in itself be done delibe-
rately and with intention of mischief or great bodily harm
to particulars, or of mischief indiscriminately, fall it
where it may, and death ensue against or beside the orig-
inal intention of the party, it will a be murder. But if
such mischievous intention doth not appear, which is
matter of fact and to be collected from circumstances, and-
the act was done heedlessly and incautiously, it will be
manslaughter, not accidental death, because the act upon
which death ensued was unlawful."
Extreme necessity of hunger does not justify an homicide.
— R. v. Dudley, 15 Cox, 642.
If two persons enter into an agreement to commit suicide
together, and the means employed kill one of them only,
the survivor is guilty of murder. — R. v. Jessop, 16 Cox,
204.
The circumstance of a person, having acted under an
irresistible influence to the commission of homicide, is no
defence, if at the time he committed the act, he knew he
OFFENCES AGAINST THE PERSON. 105
was doing what was wrong. — R. v. Haynes, 1 F. & F.
666.
On an indictment for murder, it being proved that the
prisoner, a soldier, shot his officer through the head, the
onlv evidence for the defence being that the act was
sudden, without apparent motive, and that he had been
addicted to drink, and had been suffering under depres-
sion. Held, that this was not enough to raise the defence
of insanity, that the sole question was whether the pris-
oner fired the gun intending to kill, and that his expres-
sions soon after the act were evidence of this, and that
alleged inadequacy of motive was immaterial, the ques-
tion being, not motive, but intent. — R. v. Dixon, 11
Cox, 341.
Killing a man who was out at night dressed in white
as a ghost, for the purpose of frightening the neighbor-
hood, is murder : it is no excuse that he could not other-
wise be taken. — 1 Russ. 749.
Forcing a person to do an act which is likely to produce
and does produce death is murder ; so, if the deceased
threw himself out of a window, or in a river to avoid the
violence of the prisoner. — 1 Runs. 676; jR. v. Pitts, Car.
& M. 284.
If two persons fight, and one overpowers the other and
knocks him down, and puts a rope round his neck, and
strangles him, this will be murder. — R. v. Shaiu, 6 C. <b P.
372.
If a person being in possession of a deadly weapon
enters into a contest with another, intending at the time to
avail himself of it, and in the course of the contest actu-
ally uses it, and kills the other, it will be murder ; but if
he did not intend to use it when he began the contest, but
used it in the heat of passion, in ccnsequence of an attack
106 OFFENCES AGAINST THE PERSON.
made upon him, it will be manslaughter. If he uses it to
protect his own life or to protect himself from such serious
bodily harm, as would give him a reasonable apprehension
that his life was in immediate danger, having no other
means of defence, and no means of escape, and retreating
as far as he can, it will be justifiable homicide. — R. v.
Smith, 8 C. & P. 160.
A person cannot be indicted for murder in procuring
another to be executed, by falsely charging him with a
crime of which he was innocent.— R. v. Macdaniel, 1 Leach,
44. Sed quaere t 4 Blackstone, 196 ; 2d Report, 1846, Cr.
Law Comm. 45.
Child murder, —To justify a conviction on an indict-
ment charging a woman with the wilful murder of a child
of which she was delivered, and which was born alive, the
jury must be satisfied affirmatively that the whole body was
brought alive into the world; and it is not sufficient that
the child has breathed in the progress of the birth. — R. v.
Poulton, 5 C. & P. 329; E. v. Enoch, 5 C & P. 539.—
If a child has been wholly produced from the body of its
mother, and she wilfully and of malice aforethought
strangles it while it is alive, and has an independent circu-
lation, this is murder, although the child is still attached
to its mother by the umbilical cord. — R. v. Trilloe, 2
Moo. C. C. 260. — A prisoner was charged with the murder of
her new-born child, by cutting off its head : Held, that, in
order to justify a conviction for murder, the jury must be
satisfied that the entire child was actually born into the
world in a living state; and that the fact of its having
breathed is not a decisive proof that it was born alive, as
it may have breathed and yet died before birth. — R. v.
Sellis, 7 C.& P. S50.—R. v. Handley, 13 Cox, 79.
An infant in its mother's womb is not considered as a
person who can be killed within the description of murder
OFFENCES AGAINST THE PERSON. 107
or manslaughter. The rule is thus : it must be born, every
part of it must have come from the mother, before the
killing of it will constitute a felonious homicide. — R. v,
Wright, 9 C. <£r P. 754 ; R. v. Blain, 6 C. & P. 349 ; 1
Ru*$. 670 ; 2 Bishop, Cr. L. 632. Giving a child,
whilst in the act of being born, a mortal wound in the
head, as soon as the head appears, and before the child has
breathed, will, if the child is afterwards born alive and
dies thereof, and there is nialice, be murder ; but if there is
not malice, manslaughter. — R. v. Senior, 1 Moo. C. C. 346 ;
1 Lewin, C. C. 183.
Murder by poisoning. — Of all the forms of death, by
which human nature may be overcome, the most detes-
table is that of poison : because it can, of all others, be the
least prevented either by manhood or forethought. — 3 Inst*
48. He that wilfully gives poison to another, that hath
provoked him or not, is guilty of wilful murder ; the
reason is because it is an act of deliberation odious in
law, and presumes malice. — 1 Hale, 455. A prisoner was
indicted for the murder of her infant child by poison. She
purchased a bottle of laudanum, and directed the person
who had the care of the child to give it a teaspoonful every
night. That person did not do so, but put the bottle on
the mantel-piece, where another little child found it, and
gave part of the contents to the prisoner's child who soon
after died : held, tint the administering of the laudanum
by the child was as much, in point of law, an administering
by the prisoner, as if she herself had actually administered
it with her own hand. — R. v. Michael, 2 Moo. C. C. 120. On
a trial for murder by poisoning, statements, made by the
deceased in a conversation shortly before the time at which
the poison is supposed to have been administered, are
evidence to prove the state of his health at that time. — R.
108 OFFENCES AGAINST THE PERSON.
v. Johnston, 2 G. & K. 354. On an indictment for the
murder of A, evidence is not admissible that three others
in the same family died of similar poison, and that the
prisoner was at all the deaths, and administered something
to two of his patients. — R. v. Winslow, 8 Cox, 397. On
an indictment against a woman for the murder of her
husband by arsenic, in September, evidence was tendered,
on behalf of the prosecution, of arsenic having been taken
by her two sons, one of whom died in December and the
other in March subsequently, and also by a third son, who
took arsenic in April following, but did not die. Proof was
given of a similarity of symptoms in the four cases.
Evidence was also tendered that she lived in the same
house with her husband and sons, and that she prepared
their tea, cooked their victuals, and distributed them to
the four parties : held, that this evidence was admissible
for the purpose of proving, first, that the deceased husband
actually died of arsenic ; secondly, that his death was not
accidental ; and that it was not inadmissible by reason of
its tendency to prove or create a suspicion of a subsequent
felony.— R. v. Geering, 18 X. J. 31. C. 215. Upon the
trial of a husband and wife for the murder of the mother
of the former by administering arsenic to her, for the pur-
pose of rebutting the inference that the arsenic had been
taken by accident, evidence was admitted that the male
prisoner's first wife had been poisoned nine months previ-
ously; that the woman who waited upon her, and
occasionally tasted her food, shewed symptoms of having
taken poison; that the food was always prepared by the
female prisoner; and that the two prisoners, the only other
persons in the house, were not affected with any symptoms
of poison. — R. v. Garner, 4 F. & F. 346. And Archbold,
J., after consulting Pollock, C. B., in R. v. Cotton, 12
OFFENCES AGAINST THE PERSON. 109
Cox, 400, held, that where a prisoner was charged with the
murder of her child by poison, and the defence was that
its death resulted from an accidental taking of such poison,
evidence to prove that two other children of hers and a
lodger in her house had died previous to the present charge
after having been attended by her was admissible. — See
R. v. Roden, 12 Cox, 630.
MURDER BY KILLING OFFICERS OF JUSTICE.
Ministers of justice, as bailiffs, constables, watchmen,
etc. (either civil or criminal justice), while in the execution
of their offices, are under the peculiar protection of the
law ; a protection founded in wisdom and equity, and in
every principle of political justice ; for without it the pub-
lic tranquillity cannot possibly be maintained, or private
property secured. For these reasons, the killing of officers
so employed has been deemed murder of malice prepense
as being an outrage wilfully committed in defiance of the
justice of the kingdom. The law extends the same protec-
tion to any person acting in aid of an officer of justice,
whether specially called thereunto or not. And a public
officer is to be considered as acting strictly in discharge of
his duty, not only while executing the process intrusted
to him, but likewise while he is coming to perform, and
returning from the performance of his duty.
He is under the protection of the law eundo, morando
et redeundo. And, therefore, if coming to perform his office
he meets with great opposition and retires, and in the
retreat is killed, this will be murder. Upon the same prin-
ciples, if he meets with opposition by the way, and is
killed before he comes to the place (such opposition being
intended to prevent his performing his duty), this will also
be murder. — Roscoe, 697 ; 1 Russ. 732. But the defen-
110 OFFENCES AGAINST THE PERSON.
dant must be proved to have known that the deceased was
a public officer, and in the legal discharge of his duty as
such ; for if he had no knowledge of the officer's authority
or business, the killing will be manslaughter only.
In order to render the killing of an officer of justice,
whether he is authorized in right of his office or by
warrant, amount to murder, upon his interference with
an affray, it is necessary that he should have given
some notification of his being an officer, and of the intent
with which he interfered. — B. v. Gordon, 1 East, P. G.
315, 352.
Where a constable interferes in an affray to keep the
peace, and is killed, such of the persons concerned in kill-
ing him as knew him to be a constable are guilty of murder,
and such as did not know it of manslaughter only. — 1 Hale,
446. But it hath been adjuged that if a justice of the
peace, constable or watchman, or even a private person, be
killed in endeavoring to part those whom he sees fighting,
the person by whom he is killed is guilty of murder ; yet
it hath been resolved, that if the third person slain in such
a sudden affray do not give notice for what purpose he
comes, by commanding the parties in the king's name to
keep the peace, or otherwise manifestly shewing his inten-
tion to be not to take part in the quarrel but to appease it
he who kills him is guilty of manslaughter only, for he
might suspect that he came to side with his adversary ;
but if the person interposing in such case be an officer
within his proper district, and known, or generally
acknowledged to bear the office he assumeth, the law will
presume that the party killing had due notice of his intent
especially if it be in the day time. — 1 Haivkins, 101.
Killing an officer will amount to murder, though he had
no warrant, and was not present when any felony was
>
OFFENCES AGAINST THE PERSON. Ill
committed, and takes the party upon a charge only, and
though such charge does not in terms specify all the par-
ticulars necessary to constitute the felony. — R. v. Ford
R. & R., 329. See Rafferty v. the People, 12 Cox, 617 ;
R. v. Carey, 14 Cox, 214.
Killing an officer who attempts to arrest a man will be
murder, though the officer had no warrant, and though the
man has done nothing for which he was liable to be arrested,
if the officer has a charge against him for felony, and the
man knows the individual to be an officer, though the
officer does not notify to him that he has such a charge. —
R v, Woolmer, 1 Moo. C C. 334.
So, where a man seen attempting to commit a felony on
fresh pursuit kills his pursuer, it is as much murder as if
the party were killed while attempting to take the defen-
dant in the act, for any person, whether a peace officer or
not, has power to arrest a person attempting to commit or
actually committing a felony. — R. v. Howarth, 1 Moo.
C. G. 207.
If a person is playing music in a public thoroughfare,
and thereby collects together a crowd of people, a police-
man is justified in desiring him to go on, and in laying
his hand on him and slightly pushing him, if it is only
done to give effect to his remonstrance ; and if the person,
on so small a provocation, strikes the policeman with a
dangerous weapon and kills him, it will be murder, but
otherwise if the policeman gives him a blow and knocks
him down. — R. v. Hagan, 8 C. & P. 167.
MURDER. — KILLING BY OFFICERS OF JUSTICE.
Where an officer of justice, in endeavoring to execute
his duty, kills a man, this is justifiable homicide, or
manslaughter, or murder, according to circumstances.
Where an officer of justice is resisted in the legal execu-
112 OFFENCES AGAINST THE PERSON.
tion of his duty, he may repel force by force ; and if in
doing so, he kills the party resisting him, it is justifiable
homicide ; and this in civil as well as in criminal cases. —
1 Hale, 494; 2 Hale, 118. And the same as to persons
acting in aid of such officer. Thus if a peace officer have
a legal warrant against B. for felony,or if B. stand indicted
for felony, in these cases, if B-resist, and in the struggle
be killed by the officer, or any person acting in aid of him,
the killing is justifiable. — Fost. 318. So, if a private
person attempt to arrest one who commits a felony inhis
presence or interferes to suppress an affray, and be resisted,
and kill the person resisting, this is also justifiable homi-
cide.— 1 Hale, 481, 484. Still there must be an apparent
necessity for the killing : for if the officer were to kill after
the resisting had ceased, or if there were no reasonable
necessity for the violence used upon the part of the officer,
the killing would be manslaughter at the least. Also, in
order to justify an officer or private person in these cases,
it is necessary that they should, at the time, be in the
act of legally executing a duty imposed upon them by law,
and under such circumstances that, if the officer or private
person were killed, it would have been murder ; for if the
circumstances of the case were such that it would have
been manslaughter only to kill the officer or private person,
it will be manslaughter, at least, in the officer or private
person to kill the party resisting. — Fost. 3 18 ; 1 Hale, 490.
If the prisoners in a gaol, or going to a gaol, assault the
gaoler or officer, and he, in his defence, kill any of them,
it is justifiable, for the sake of preventing an escape. —
1 Hale, 496.
Where an officer or private person, having legal author-
ity to apprehend a man, attempts to do so, and the man,
instead of resisting, flies, or resists and then flies, and is
OFFENCES AGAINST THE PEKSON. 113
killed by the officer or private person in the pursuit, if the
offence with which the man was charged were a treason or
a felony, or a dangerous wound given, and he could not
otherwise be apprehended, the homicide is justifiable ; but
if charged with a breach of the peace or other misdemeanor
merely, or if the arrest were intended in a civil suit, or if
a press-gang kill a seaman or other person flying from
them, the killing in these cases would be murder, unless,
indeed, the homicide were occasioned by means not likely
or intended to kill, such as tripping up his heels, giving
him a blow of an ordinary cudgel, or other weapon not
likely to kill, or the like ; in which case the homicide,
at most, would be manslaughter only. In case of a riot or
rebellious assembly, the officers endeavoring to disperse
the mob are justifiable in killing them, both at common
law, and by the Riot Act, if the riot cannot otherwise be
suppressed. — Archbold, 646.
DUELLING.
"Where words of reproach or other sudden provocations
have led to blows and mutual combat, and death has
ensued, the important enquiry will be, whether the
occasion waa altogether sudden and not the result of
preconceived anger or malice ; for in no case will the
killing, though in mutual combat, admit of alleviation,
if the fighting were upon a malice. Thus a party killing
another in a deliberate duel is guilty of murder. — 1 Russ.
727.
Where, upon a previous agreement, and after there has
been time for the blood to cool, two persons meet with
deadly weapons, and one of them is killed, the party who
occasions the death is guilty of murder, and the seconds
also are equally guilty ; and with respect to others shewn
I
114 OFFENCES AGAINST THE PERSON.
to be present, the question is, did they give their aid and
assistance by their countenance and encouragement of the
principals in the contest : mere presence will not be
sufficient ; but if they sustain the principals either by
advice or assistance, or go to the ground for the purpose
of encouraging and forwarding the unlawful conflict,
although they do not say or do anything, yet, if they are
present assisting and encouraging by their presence at the
moment when the fatal shot is fired, they are, in law,
guilty of the crime of murder. — R. v. Young, 8 C. & P.
644.
Where two persons go out to fight a deliberate duel
and death ensues, all persons who are present, encourag-
ing and promoting that death, will be guilty of murder.
And the person who acted as the second of the deceased
person in such a duel may be convicted of murder, on an
indictment charging him with being present, aiding and
abetting the person by whose act the death of his principal
was occasioned. — R. v. Cuddy, 1 C. & K. 210.
Verdict. — General Remarks. — By sect. 183 of the Pro-
cedure A ct if upon the trial of any person charged with
any felony or misdemeanor, it appears to the jury upon
the evidence that the defendant did not complete the
offence charged, but that he was guilty only of an attempt
to commit the same, such person shall not by reason
thereof be entitled to be acquitted, but the jury shall be
at liberty to return as their verdict that the defendant is
not guilty of the felony or misdemeanor charged, but is
guilty of an attempt to commit the same ; and thereupon,
such person shall be liable to be punished in the same
manner as if he had been convicted upon an indictment
for attempting to commit the particular felony or mis-
demeanor charged in the indictment.
OFFENCES AGAINST THE PERSON. 115
And by sect. 191 of the Procedure Act, on the trial of
any person for any felony whatever, where the crime
charged includes an assault against the person, although
an assault be not charged in terms, the jury may acquit
of the felony, and find a verdict of guilty of assault
against the person indicted, if the evidence warrants such
finding. In England, a similar clause, 7 Will. 4 & 1 V.,
c. 85, sect. 11, has been repealed.
SELF-MURDER.
A felo de se, or felon of himself, is a person who, being
of sound mind and of the age of discretion, voluntarily
killeth himself.— 3 Inst. 54.
If a man give himself a wound, intending to he felo de
se, and dieth not within a year and a day after the wound,
he is not felo de se. — Ibid.
The following passages from Hale and Hawkins may
be usefully inserted here :
" It is not every melancholy or hypochondriacal dis-
temper that denominates a man non compos, for there are
few who commit this offence, but are under such infirmi-
ties, but it must be such an alienation of mind that ren-
ders them to be madmen, or frantic, or destitute of the
use of reason : a lunatic killing himself in the fit of lunacy
is not felo de se ; otherwise it is, if it be at another time."
—1 Hale, 412.
" But here, I cannot but take notice of a strange notion
which has unaccountably prevailed of late, that every one
who kills himself must be non compos of course : for it is
said to be impossible that a man in his senses should do a
thing so contrary to nature and all sense and reason. If
this argument be good, self-murder can be no crime, for
a madman can be guilty of none ; but it is wondeiful that
116 OFFENCES AGAINST THE PERSON.
the repugnancy to nature and reason, which is the highest
aggravation of this offence, should be thought to make it
impossible to be any crime at all, which cannot but be
the necessary consequence of this position, that none but
a madman can be guilty of it. May it not, with as much
reason, be argued that the murder of a child or of a parent
is against nature and reason, and consequently that no
man in his senses can commit it," — 1 Hawkins, c. 9, s. 2.
If one encourages another to commit a suicide, and is
present abetting him while he does so, such person is
guilty of murder as a principal ; and if two encourage each
other to murder themselves, and one does so, the other
being present, but failing in the attempt on himself, the
latter is a principal in the murder of the first. — R. v,
Dyson, & & R. 523 ; R. v. Allison, 8 C. & P. 418 ; R.
v. Jessop, 16 Cox, 204.
An attempt to commit suicide is not an attempt to
commit murder, within 32-33 V., c. 20, but still remains
a common law misdemeanor. — R. v. Burgess, L. & C. 258.
The finding of felo de se by the coroner's jury carries a
forfeiture of goods and chattels. — 2 Burns' Just. 1340.
An attempt to commit suicide is a misdemeanor at com-
mon law. — R. v. Doody, 6 Cox, 463. See R. v. Malony,
9 Cox, 6.
MANSLAUGHTER.
(sec, 5, post).
Indictment. — The jurors that A. B.
on at in the county did feloniously
kill and slay one against the peace
It need not conclude contra formam statuti. It. v.
Chatburn, 1 Moo. G. C. 402. Nor is it necessary where the
manslaughter arises from an act of omission, that such act
of omission should be stated in the indictment. — R. v.
Smith, 11 Cox, 210.
Manslaughter is principally distinguishable from mur-
der, in this, that though the act which occasions the death
is unlawful, or likely to be attended with bodily mischief,
yet the malice, eicher express or implied, which is the very
essence of murder, is presumed to be wanting in man-
slaughter, the act being rather imputed to the infirmity of
human nature. — Roscoe, 638 ; Foster, 290.
In this species of homicide, malice, which is the main
ingredient and characteristic of murder, is considered to be
wanting; and though manslaughter is in its degree felo-
nious, yet it is imputed by the benignity of the law to
human infirmity ; to infirmity which, though in the eye
of the law criminal, is considered as incident to the frailty
of the human constitution. In order to make an abettor
to a manslaughter a principal in the felony, he must be
present aiding and abetting the fact committed. It was
formerly considered that there could not be any accesso-
ries before the fact in any case of manslaughter, because it
was presumed to be altogether sudden, and without preme-
ditation. And it was laid down that if the indictment be
118 OFFENCES AGAINST THE PERSON.
for murder against A. and that B. and C. were counselling
and abetting as accessories before only (and not as present
aiding and abetting, for such are principals), if A. be found
guilty only of manslaughter, and acquitted of murder, the
accessories before will be thereby discharged. But the
position ought to be limited to these cases where the kill-
ing is sudden and unpremeditated ; for there are cases of
manslaughter where there may be accessories. Thus a
man may be such an accessory by purchasing poison for a
pregnant woman to take in order to procure abortion, and
which she takes and thereby causes her death. R. v.
Gaylor, Dears. & B. 288. If therefore upon an indict-
ment against the principal and an accessory after the fact
for murder, the offence of the principal be reduced to man-
slaughter, the accessory may be convicted as accessory to
the manslaughter. — 1 Muss. 783.
Manslaughter is homicide not under the influence of
malice. — R. v. Taylor, 2 Lewin, 215.
The several instances of manslaughter may be considered
in the following order : 1. Cases of provocation. 2. Cases
of mutual combat. 3. Cases of resistance to officers of
justice, to persons acting in their aid, and to private per-
sons lawfully interfering to apprehend felons, or to prevent
a breach of the peace. 4. Cases where the killing takes
place in the prosecution of some criminal, unlawful or
wanton act. 5. Cases where the killing takes place in
consequence of some lawful act being criminally or
improperly performed, or of some act performed without
lawful authority. — 1 Russ. loc. cit.
CASES OF PROVOCATION.
Whenever death ensues from the sudden transport of
passion, or heat of blood upon a reasonable provocation,
OFFENCES AGAINST THE PEESON. 119
and without malice, it is considered as solely imputable to
human infirmity : and the offence will be manslaughter.
It should be remembered that the person sheltering him-
self under this plea of provocation must make out the cir-
cumstances of alleviation to the satisfaction of the court
and jury, unless they arise out of the evidence produced
against him ; as the presumption of law deems all homicide
to be malicious, until the contrary is proved. The most
grievous words of reproach, contemptuous and insulting
actions or gestures, or trespasses against lands or goods,
will not free the party killing from the guilt of murder, if
upon such provocation a deadly weapon was made use of,
or an intention to kill, or to do some great bodily harm,
was otherwise manifested. But if no such weapon be
used, or intention manifested, and the party so provoked
give the other a box on the ear or strike with a stick or
other weapon not likely to kill, and kill him unluckily
and against his intention, it will be only manslaughter.
Where an assault is made with violence or circumstances
of indignity upon a man's person, as by pulling him by
the nose, and the party so assaulted kills the aggressor, the
crime will be reduced to manslaughter, in case it appears
that the assault was resented immediately, and the aggres-
sor killed in the heat of blood, the far or brevis occasioned
by the provocation. So if A. be passing along the street,
and B. meeting him (there being convenient distance be-
tween A. and the wall take the wall) of him and justle him,
and thereupon A. kill B. it is said that suchjustling would
amount to provocation which would make the killing only
manslaughter.
And again it appears to have been considered that where
A. riding on the road, B. whipped the horse of A. out of the
track, and then A. alighted and killed B., it was only man-
120 OFFENCES AGAINST THE PERSON.
slaughter. But in the two last cases, it should seem that
the first aggression must have been accompanied with cir-
cumstances of great violence or insolence ; for it is not every
trivial provocation which, in point of law, amounts to an
assault, that will of course reduce the crime of the party
killing to manslaughter. Even a blow will not be consi-
dered as sufficient provocation to extenuate in cases where
the revenge is disproportioned to the injury, and outrageous
and barbarous in its nature ; but where the blow which gave
the provocation has been so violent as reasonably to have
caused a sudden transport of passion and heat of blood, the
killing which ensued has been regarded as the consequence
of human infirmity, and entitled to lenient consideration. —
1 Russ. 784. For cases on this defence of provocation,
see under the head Murder.
In R. v. Fisher, 8 C. & P. 182, it was ruled that
whether the blood has had time to cool or not is a question
for the court and not for the jury, but it is for the jury to
find what length of time elapsed between the provocation
received, and the act done. But in R. v. Lynch, 5 C. &
P. 324 ; R. v. Eayivard, 6 C. & P. 127 ; R. v. Eagle, 2
F. & F. 827, the question, whether or not the blow was
struck before the blood had time to cool and in the heat of
passion, was left to the jury ; and this seems now settled to
be the law on the question. The English commissioners,
4th Beport, p. XXV, are also of opinion that "the law
may pronounce whether any extenuating occasion of pro-
vocation existed, but it is for the jury to decide whether
the offender acted solely on that provocation, or was guilty
of a malicious excess in respect of the instrument used or
the manner of using it."
Cases of mutual combat — Where, upon words of re-
proach, or any other sudden provocation, the parties come
OFFENCES AGAINST THE PERSON. 121
to blows, and a combat ensues, no undue advantage being
sought or taken on either side, if death happen under such
circumstances, the offence of the party killing will amount
only to manslaughter. If A. has formed a deliberate design
to kill B. and after this they meet and have a quarrel and
many blows pass, and A. kills B. this will be murder, if
the jury is of opinion that the death was inconsequence of
previous malice, and not of the sudden provocation. — R.
v. Kirkham, 8 C. & P. 115. If after an exchange of blows
on equal terms, one of the parties on a sudden and
without any such intention at the commencement of the
affray, snatches up a deadly weapon and kills the other
party with it, such killing will only amount to man-
slaughter ; but it will amount to murder if he placed the
weapon, before they began to fight, so that he might use it
during the affray. — 1 Russ. 731 ; R. v. Kessel, 1 C. & P.
437; R. v. Whiteley, 1 Lewin, 173.
Where there had been mutual blows, and then, upon one
of the parties being pushed down on the ground, the other
stamped upon his stomach and belly with great force,
and thereby killed him, it was considered only to be man-
slaughter.—i?. v. Ayes, R. & R. 166.
If two persons be fighting, and another interfere with
intent to part them, but do not signify such intent, and
he be killed by one of the combatants, this is but man-
slaugter.
A sparring match with gloves fairly conducted in a pri-
vate room is not unlawful, and therefore death caused by
an injury received during such a match does not amount
to manslaughter. — R. v. Young, 10 Cox, 371.
Cases of resistance to officers of justice ; to persons act-
ing in their aid, and to private persons lawfully inter-
fering to apprehend felons or to prevent a breach of the
122 OFFENCES AGAINST THE PEKSON.
peace. See under the head murder ; sub-title murder by
killing officers of justice. Attempting illegally to arrest
a man is sufficient to reduce killing the person making the
attempt to manslaughter, though the arrest was not actu-
ally made, and though the prisoner had armed himself with
a deadly weapon to resist such attempt, if the prisoner was
in such a situation that he could not have escaped from
the arrest ; and it is not necessary that he should have given
warning to the person attempting to arrest him before he
struck the blow. — R. v. Thompson, 1 Moo. C. C. 80.
If a constable takes a man without warrant upon a
charge which gives him no authority to do so, and the pris-
oner runs away and is pursued by J. S., who was with the
constable at the time, and charged by him to assist, and
the man kills J. S. to prevent his retaking him, it will not
be murder, but manslaughter only ; because if the original
arrest was illegal, the recaption would have been so like-
wise.— R. v. Curvan, 1 Moo. C. C. 132.
Where a common soldier stabbed a sergeant in the same
regiment who had arrested him for some alleged misde-
meanor, held, that as the articles of war were not produced,
by which the arrest might have been justified, it was only
manslaughter as no authority appeared for the arrest. — R.
v. Withers, 1 East, P. C. 295.
A warrant leaving a blank for the christian name of the
person to be apprehended, and giving no reason for omitting
it but describing him only as the son of J. S. (it appears
that J. S. had four sons, all living in his house), and stating
the charge to be for assaulting A. without particularizing
the time, place or any other circumstances of the assault,
is too general and unspecific. A. resistance to an arrest
thereon, and killing the person attempting to execute it,
will not be murder. — R. v. Hood, 1 Moo. C. C. 381.
OFFENCES AGAINST THE PERSON. 123
A constable having a warrant to apprehend A. gave it to
his son, who in attempting to arrest A. was stabbed by him
with a knife which A. happened to have in his hand at the
time, the constable then being in sight, but a quarter of
a mile off: Held, that this arrest was illegal, and that if
death had ensued, this would have been manslaughter
only, unless it was shewn that A. had prepared the knife
beforehand to resist the illegal violence. — R. v. Patience,
7 C. & P. 795.
In order to justify an arrest even by an officer, under a
warrant, for a mere misdemeanor, it is necessary that he
should have the warrant with him at the time. Theiefore*
in a case where the officer, although he had seen the
warrant, had it not with him at the time, and it did not
appear that the party knew of it ; held, that the arrest
was not lawful, and the person against whom the warrant
was issued resisting apprehension and killing the officer ;
held, that it was manslaughter only. — R. v. Chapman,
12 Cox, 4.
If a prisoner, having been lawfully apprehended by a
police constable on a criminal charge, uses violence to the
constable, or to any one lawfully aiding or assisting him,
which causes death, and does so with intent to inflict
grievous bodily harm, he is guilty of murder ; and so, if
he does so, only with intent to escape. But if, in the
course of the struggle, he accidentally causes an injury, it
would be manslaughter. Suppose a constable, having a
good and bad warrant, arrest a man on the bad wan-ant
only, which he allows the man to read, who sees it is void,
and resists his arrest on that ground, and the result is the
death of the officer ; if this had been the only authority the
officer had, the offence would have been only manslaugh-
ter; is the man guilty of murder by reason of the good
124 OFFENCES AGAINST THE PERSON.
warrant of which he knew nothing ? It would seem that
there are strong reasons for saying that he would not be
guilty of murder. The ground on which the killing an
officer is murder is that the killer is wilfully setting the
law at defiance, and killing an officer in the execution of
his duty. The ground on which the killing of an officer
whilst executing an unlawful warrant is manslaughter is
that every man has a right to resist an unlawful arrest,
and that such an arrest is a sufficient provocation to reduce
the killing to manslaughter. In the supposed case the
killer would not be setting the law at defiance, but would
be resisting to what appeared to him to be an unlawful
arrest; and the actual provocation would be just as great
as if the bad warrant alone existed. It is of the
essence of a warrant that " the party upon whom it is
executed should know whether he is bound to submit to
the arrest. " (Per Coltman, J., in Hoye v. Bush, citing R,
v. Weir, 1 B. & G. 288.) And where an arrest is made
without a warrant, it is of the essence of the lawfulness of
the arrest that the party arrested should have either
express or implied notice of the cause of the arrest. Now,
where a constable in the supposed case arrests on the void
warrant, the party arrested has no express notice of the
good warrant, for it is not shown, and no implied notice of
it, for everything done by the constable is referable to the
void warrant ; and, besides, the conduct of the constable is
calculated to mislead, and it may well be that the party is
innocent, and knows nothing of the offence specified in the
valid warrant. Lastly, it must be remembered that in such
a case the criminality of the act depends upon the inten-
tion of the party arrested, and that intention cannot in
any way be affected by facts of which he is ignorant.
On the other hand, it would seem to be clear that,
!
OFFENCES AGAINST THE PERSON. 125
where an officer has two or more warrants, one of
which is bad, and he shows all to the party to be arrested,
who kills the officer in resisting the arrest, it would be
murder, for he was bound to yield obedience to the lawful
authority. By Greaves, in notes on " arrest without
vso.rrant. " {Cox & Saunder's Crim. Laic. Consol. Acts.
p.LXXVIl)
Cases where the killing takes place in the prosecution
of some criminal, unlawfalor wanton act. — Where from
an action unlawful in itself, done deliberately and with
mischievous intention, death ensues, though against or
beside the original intention of the party, it will be mur-
der; and if such deliberation and mischievous intention
do not appear, which is matter of fact and to be attested
from circumstances, and the act was done heedlessly and
incautiously, it will be manslaughter. — R. v. Fenton, 1
Lewin, C. C. 179 ; R. v. Franklin, 15 Cox, 164.
As if a person breaking an unruly h)rse ride him
amongst a crowd of people, and death ensue from the
viciousness of the animal, and it appear clearly to have
been done heedlessly and incautiously only, and not with
the intent to do mischief, the crime will be manslaughter.
—1 Russ.- 849.
Where one having had his pocket picked, seized the
offender, and being encouraged by a concourse of people,
threw him into an adjoining pond by way of avenging
the theft by ducking him ; but without any intention of
taking away his life, this was held to be manslaughter
only— R. v. Fray, 1 East, P. C. 236.
Causing the death of a child, by giving it spirituous
liquors in a quantity quite unfit for its tender age, amounts
to manslaughter. — R. v. Martin, 3 C. & P. 211,
If a man take a gun, not knowing whether it is loaded
126 OFFENCES AGAINST THE PERSON.
or unloaded and using no means to ascertain, fires it in
the direction of any other person, and death ensues, this is
manslaughter. — R. v. Campbell, 11 Cox, 323.
The prisoner was charged with manslaughter. The evi-
dence showed that the prisoner had struck the deceased
twice with a heavy stick, that he had afterwards left him
asleep by the side of a small fire in a country by-lane,
during the whole of a frosty night in January, and the
next morning finding him just alive, put him under some
straw in a barn, where his body was found some months
after. The jury were directed that if the death of the
deceased had resulted from the beating or from the
exposure during the night in question, such exposure
being the result of the prisoner's criminal negligence,
or from the prisoner leaving the body under the straw ill
but not dead, the prisoner was guilty of manslaughter.
Verdict, manslaughter. — R. v. Martin, 11 Cox, 137. See
M. v. Towers, 12 Cox, 530, as to causing death through
frightening the deceased) ; and R. v. Dugal, post.
Cases where the killing takes place in consequence of
some law jul act being criminally or improperly per-
formed, or of some act performed without lawful author-
ity,— Where a felony has been committed, or a dangerous
wound given, and the party flies from justice, he may be
killed in the pursuit, if he cannot otherwise be taken.
And the same rule holds if a felon, after arrest, break
away as he is carried to gaol, and his pursuers cannot
retake without killing him. Bat if he may be taken in
any case without such severity, it is at least manslaughter
in him who kills him, and the jury ought to enquire
whether it were done of necessity or not.
In making arrests in cases of misdemeanor and breach
of the peace (with the exception, however, of some cases
OFFENCES AGAINST THE PERSON. 127
of flagrant misdemeanors), it is not lawful to kill the party
accused if he fly from the arrest, though he cannot other-
wise be overtaken, and though there be a warrant to
apprehend him, and generally speaking it will be murder ;
but under circumstances it may amount only to man-
slaughter, if it appear that death was not intended. — 1
Muss. 858.
If an officer, whose duty it is to execute a sentence of
whipping upon a criminal, should be so barbarous as to
cause the party's death by excessive execution of the
sentence, he will at least be guilty of manslaughter. — 1
Haickins, P. C, c. 29, s. 5.
Killing by correction. — Moderate and reasonable cor-
rection may properly be given by parents, masters and
other persons, having authority in foro doniestico, to those
who are under their care; but if the correction be immo-
derate or unreasonable, either in the measure of it or in
the instrument made use of for that purpose, it will be either
murder or manslaughter, according to the circumstances of
the case. If it be done with a dangerous weapon, likely
to kill or maim, due regard being always had to the age
and strength of the party, it will be murder ; but, if with
a cudgel o\ other thing not likely to kill, thougn improper
for the purpose of correction, it will be manslaughter. — 1
Russ. 861.
Where a muster struck his servant with one of his clogs,
because he had not cleaned them, and death unfortunately
ensued, it was holden to be manslaughter only because
the clog was very unlikely to cause death, and the
master could not have the intention of taking away the
servant's life by hitting him with it. — R. v. Wiggs, 1
Leach, 378.
A schoolmaster who, on the second day of a boy's return
to school, wrote to his parent, proposing to beat him
128 OFFENCES AGAINST THE PERSON.
severely in order to subdue his alleged obstinacy, and on
receiving the father's reply assenting thereto, beat the boy
for two hours and a half, secretly in the night, and with a
thick stick, until he died, is guilty of manslaughter. — R.
v. Hopley, 2 F. & F. 202.
Where a person in loco parentis inflicts corporal punish-
ment on a child, and compels it to work for an unreason-
able number of hours, and beyond its strength, and the
child dies, the death being of consumption, but hastened
by the ill-treatment, it will not be murder but only man-
slaughter in the person inflicting the punishment, although
it was cruel and excessive, and accompanied by violent
and threatening language, if such person believed that
the child was shamming illness, and was really able to do
the quantity of work required. — R. v. Cheeseman, 7 C. &
P. 454.
An infant, two years and a half old, is not capable of
appreciating correction ; a father therefore is not justified
in correcting it, and if the infant dies owing to such
correction, the father is guilty of manslaughter. — R. v.
Qriffin, 11 Cox, 402.
Death caused by negligence. — Where persons employ-
ed about such of their lawful occupations, from whence
danger may probably arise to others, neglect the ordinary
cautions, it will be manslaughter at least, if death is caused
by such negligence. — 1 Russ. 864.
That which constitutes murder when by design and of
malice prepense, constitutes manslaughter when arising
from culpable negligence. The deceased was with others
employed in walling the inside of a shaft. It was the
duty of the prisoner to place a stage over the mouth of
the shaft, and the death of deceased was occasioned by
the negligent omission on his part to perform such duty.
OFFENCES AGAINST THE PERSON. 129
He was convicted of manslaughter, and upon a case
reserved the conviction was affirmed. — R. v. Hughes, 7
Cox, 301.
The prisoner, as the private servant of B., the owner
of a tramway crossing a public road, was entrusted to
watch it. While he was absent from his duty, an accident
happened and C. was killed. The Private Act of Parlia-
ment, authorizing the road, did not require B. to watch the
tramway : Held, that there was no duty between B. and
the public, and therefore that the prisoner was not guilty
of negligence- — R. v. Smith, 11 Cox, 210.
Although it is manslaughter, where the death was the
result of the joint negligence of the prisoner and others,
yet it must have been the direct result wholly or in part
of the prisoner's negligence, and his neglect must have
been wholly or in part the proximate and efficient cause
of the death, and it is not so where the negligence of
some other person has intervened between his act or
omission and the fatal result. — R. v. Ledger, 2 F. & F. 857.
If a person is driving a cart at an unusually rapid rate,
and drives over another and kills him, he is guilty of
manslaughter though he called to the deceased to get
out of the way, and he might have done so, if he had not
been in a state of intoxication. — R. v. Walker, 1 C. & P.
320.
And it is no defence to an indictment for manslaughter
where the death of the deceased is shown to have been
caused in part by the negligence of the prisoner, that the
deceased was also guilty of negligence, and so contributed
to his own death. Contributory negligence is not an
answer to a criminal charge. — R. v. Swindall, 2 Cox_ 141.
In summing up in that case, Pollock, C. B., said :
" The prisoners are charged with contributing to the
K
130 OFFENCES AGAINST THE PERSON.
death of the deceased by their negligence and improper
conduct ; and, if they did so, it matters not whether the
deceased was deaf, or drunk, or negligent, or in part con-
tributed to his own death ; for in this consists a great
distinction between civil and criminal proceedings. If
two coaches run against each other, and the drivers of
both are to blame, neither of them has any remedy for
damages against the other. But in the case of loss of life,
the law .takes a totally different view ; for there each party
is responsible for any blame that may ensue, however
large the share may be ; and so highly does the law value
human life, that it admits of no justification wherever
life has been lost, and the carelessness and negligence of
any one person has contributed to the death of another
person."
In R. v. Bant, 10 Cox, 102; L. & C. 570, Black-
burn, J., said : " I have never heard that upon an indict-
ment for manslaughter, the accused is entitled to be
acquitted because the person who lost his life was in some
way to blame." And Erie, Channell, Mellorand Montague
Smith, J. J., concurred, following R. v. Swindall.
And in R. v. Hutchinson, 9 Cox, 555, Byles, J., in
his charge to the Grand Jury, said: "If the man had not
been killed, and had brought au action for damages, or if
his wife and family hid brought an action, if he had in
any degree contributed to the result, an action could not
be maintained. But in a criminal case, it was different
The Queen was the prosecutor and could be guilty of no
negligence ; and if both the parties were negligent the
survivor was guilty."
And the same learned Judge, in R. v. Kew, 12 Cox,
355, said: "It has been contended if there was contri-
butory negligence on the part of the deceased, then the
OFFENCES AGAINST THE PERSON. 131
defendants are not liable. No doubt contributory negligence
would be an answer to an action. But who is the plaintiff
here ? The Queen, as representing the nation ; and if they
were all negligent together I think their negligence would
be no defence."
And Lush, J., in R. v. Jones, 11 Cox, 544, distinctly
said that contributory negligence on the part of the deceased
was no excuse in a criminal case.
In R. v. Birchall, 4 F. & F. 1087 ; Willes, J., how-
ever, held that where the deceased has contributed to his
death by his own negligence, although there may have
been negligence on the part of the prisoner, the latter
cannot be convicted of manslaughter, observing that, until
he saw a decision to the contrary, he should hold that a
man was not criminally responsible for negligence for which
he would not be responsible in an action. But that case
has not been followed.
If a man undertakes to drive another in a vehicle, he is
bound to take proper care in regard to the safety of the
man under his charge ; and if by culpable negligent driving
he causes the death of the other, he will be guilty of man-
slaughter.— R. v. Jones, 11 Cox, 544.
In order to convict the captain of a steamer of man-
slaughter in causing a death by running down another
vessel, there must be some act of personal misconduct or
personal negligence shown on his part. — R. v. Allen,
7 C. & P. 153; R. v. Green, 7 G. & P. 156; R. v.
Taylor, 9 C. & P. 672.
On an indictment against an engine driver and a fireman
of a railway train, for the manslaughter of persons killed,
while travelling in a preceding train, by the prisoner's train
running into it, it appeared that on the day in question
special instructions had been issued to them, which in
132 OFFENCES AGAINST THE PERSON.
some respects differed from the general rules and regula-
tions, and altered the signal for danger so as to make it
mean not " stop " but proceed with caution ; that the trains
were started by the superior officers of the company irre-
gularly, at intervals of about five minutes ; that the pre-
ceding train had stopped for three minutes, without any
notice to the prisoners except the signal for caution ; and
that their train was being driven at an excessive rate of
speed ; and that then they did not slacken immediately on
perceiving the signal, but almost immediately, and that as
soon as they saw the preceding train they did their best
to stop but without effect : Held, first, that the special
rules, so far as they were not consistent with the general
rules, superseded them ; secondly, that if the prisoner
honestly believed they were observing them, and they
were not obviously illegal they were not criminally res-
ponsible ; thirdly, that the fireman being bound to obey
the directions of the engine driver, and so far as appeared,
having done so, there was no case against him. — M. v.
Trainer, 4F. & F. 105.
Where a fatal railway accident had been caused by the
train running off the line, at a spot where rails had been
taken up, without allowing sufficient time to replace them,
and also without giving sufficient, or at all events effective
warning to the engine-driver; and it was the dutyo f the
foreman of plate layers to direct when the work should be
done : Held, that, though he was under the general control
of an inspector of the district, the inspector was not liable,
but that the foreman was, assuming his negligence to have
been a material and a substantial cause of the accident,
even although there had also been negligence on the part of
the engine driver in not keeping a sufficient lookout. — R.
v. Benge, 4 F. & F. 504.
OFFENCES AGAINST THE PERSON. 133
By medical practitioners and quacks. — If a person,
bona, fide and honestly exercising his best skill to cure a
patient, performs an operation which causes the patient's
death, he is not guilty of manslaughter, and it makes no
difference whether such person is a regular surgeon or
not, nor whether he has had a regular medical education
or not. — R. v. Van Butchell, 3 C. & P. 629. A person
in the habit of acting as a man midwife, tearing away
part of the prolapsed uterus of one of his patients,
supposing it to be a part of the placenta, by means of
which the patient dies, is not indictable for manslaughter,
unless he is guilty of criminal misconduct arising either
from the grossest ignorance or from the most criminal
inattention. — R. v. Williamson, 3 C. & P. 635. A
person acting as a medical man, whether licensed or
unlicensed, is not criminally responsible for the death of a
patient occasioned by his treatment, unless his conduct is
characterized either by gross ignorance of his art, or by
gross inattention to his patient's safety. — R. v. St. John
Long, 4 C. & P. 398. Where a person, undertaking the
cure of a disease (whether he has received a medical
education or not), is guilty of gross negligence in attending
his patient after he has applied a remedy, or of gross
rashness in the application of it, and death ensues in
consequence of either, he is liable to be convicted of
manslaughter. — R. v. St. John Long (2nd case)} 4 C. &
P. 423.
Where a person grossly ignorant of medicine adminis-
ters a dangerous remedy to one laboring under a disease*
proper medical assistance being at the time procurable,
and that dangerous remedy causes death, the person so
administering it is guilty of manslaughter. — R. v. Webb,
2 Lewin, 196.
134 OFFENCES AGAINST THE PEESON.
In this case, Lord Lyndhurst laid down the following
rule : " In these cases there is no difference between a
licensed physician or surgeon, and a person acting as
physician or surgeon without licence. In either case, if
a party having a competent degree of skill and know-
ledge makes an accidental mistake in his treatment of a
patient, through which mistake death ensues, he is not
thereby guilty of manslaughter; but if, where proper
medical assistance can be had, a person totally ignorant
of the science of medicine takes on himself to administer
a violent and dangerous remedy to one laboring under
disease, and death ensues in consequence of that danger-
ous remedy having been so administered, then he is
guilty of manslaughter."
If a medical man, though lawfully qualified to practice
as such, causes the death of a person by the grossly un-
skilful, or grossly incautious use of a dangerous instrument,
he is guilty of manslaughter. — R. v. Spilling, 2 M . &
Rob. 107. Any person, whether a licenced medical prac-
titioner or not, who deals with the life or health of any of
His Majesty's subjects, is bound to have competent skill,
and is bound to treat his or her patients with care,
attention and assiduity ; and if a patient dies for want of
either, the person is guilty of manslaughter. — R. v. Spiller,
5 C. & P. 333 ; R. v. Simpson, 1 Lewin, 172 ; R. v.
Ferguson, 1 Lewin, 181. In cases of this nature, the
question for the jury is always, whether the prisoner
caused the death by his criminal inattention and care-
lessness.— R. v. Crick, and R. v. Crook, 4 F. & F.
519, 521; R. v. McLeod, 12 Cox 534. On an indict-
ment for manslaughter, by reason of gross ignorance and
negligence in surgical treatment, neither on one side nor
on the other can evidence be gone into of former cases
OFFENCES AGAINST THE PERSON. 135
treated by the prisoner. — R. v. Whitehead, 3 C. & K.
202.
A mistake on the part of a chemist in putting a poison-
ous liniment into a medicine bottle, instead of a liniment
bottle, in consequence of which the liniment was taken
by his customer internally with fatal results., the mistake
being made under circumstances which rather threw the
prisoner off his guard, does not amount to such criminal
negligence as will warrant a conviction for manslaugh-
ter.— R. v. Koakes, 4 F. & F. 920. On an indictment
for manslaughter against a medical man by administering
poison by mistake for some other drug, it is not sufficient
for the prosecution merely to show that the prisoner who
dispensed his own drugs supplied a mixture which con-
tained a large quantity of poison, they are bound also to
show that this happened through the gross negligence of
the prisoner. — R. v. Spencer, 10 Cox, 525. A medical
man who administered to his mother for some disease
prussic acid, of which she almost immediately died, is not
guilty of manslaughter, it not appearing distinctly what
the quantity was which he had administered, or what
quantity would be too great to be administered with
safety to life.— R. v. Bull, 2 F. & F. 201. An
unskilled practitioner who ventures to prescribe danger-
ous medicines of the use of which he is ignorant, that is
culpable rashness, for which he will be held responsible.
— R. v. Markuss, 4 F. & F. 356; R. v. McLeod, 12
Cox, 534.
The prisoner was indicted for the manslaughter of an
infant child : the prisoner, who practiced midwifery, was
called in to attend a woman who was taken in labor,
and when the head of the child became visible, the pris-
oner being grossly ignorant of the art which he pro-
136 OFFENCES AGAINST THE PERSON.
fessed, and unable to deliver the woman with safety to
herself and the child, as might have been done by a per-
son of ordinary skill, broke and compressed the skull of
the infant, and thereby occasioned its death immediately
after it was born ; the prisoner was found guilty ; it was
submitted that the child being en ventre de sa mdre when
the wound was given, the prisoner could not be guilty
of manslaughter ; but, upon a case reserved, the judges
were unanimously of opinion that the conviction was
right.— R. v. Senior, 1 Moo. C. C. 346.
NEGLECT OF NATURAL DUTIES.
Lastly, there are certain natural and moral duties
towards others, which if a person neglect without mali-
cious intention, and death ensue, he will be guilty of
manslaughter. Of this nature is the duty of a parent to
supply a child with proper food. When a child is very
young, and not weaned, the mother is criminally respon-
sible, if the death arose from her not suckling it, when she
was capable of doing so. — R. v. Edwards, 8 C. & P. 611.
But if the child be older, the omission to provide food is
the omission of the husband, and the crime of the wife can
only be the omitting to deliver the food to the child, after
the husband has provided it. — R. v. Saunders, 7 C. & P.
277.
A master is not bound by the common law to find
medical advice for his servant; but the case is different
with respect to an apprentice, for a master is bound dur-
ing the illness of his apprentice to find him with proper
medicines, and if he die for want of them, it is manslaugh-
ter in the master. — R. v. Smith, 8 G. & P. 153. Where
a person undertakes to provide necessaries for a person
who is so aged and infirm that he is incapable of doing it
for himself, and through his neglect to perform his under-
OFFENCES AGAINST THE PERSON. 137
taking death ensues, he is criminally responsible. On an
indictment for the murder of an aged and infirm woman
by confining her against her will, and not providing her
with meat, drink, clothing, firing, medicines and other
necessaries, and not allowing her the enjoyment of the
open air, in breach of an alleged duty, if the jury think
that the prisoner was guilty of wilful neglect, so gross and
wilful that they are satisfied he must have contemplated
her death, he will be guilty of murder ; but if they only
think that he was so careless that her death was occa-
sioned by his negligence, though he did not contemplate
it, he will be guilty of manslaughter. — R. v. Marriott, 8
C. & P. 425.
To render a person liable to conviction for manslaughter
through neglect of duty, there must be such a degree of
culpability in his conduct as to amount to gross negligence.
—R. v. Finney, 12 Cox, 625 ; R. v. Nicholls, 13 Cox, 75;
R. v. Handley, 13 Cox, 79; R. v. Morby, 15 Cox, 35.
OTHER CASES OF MANSLAUGHTER.
Death resulting from fear, caused by menaces of per-
sonal violence and assault, though without battery, ia
sufficient in law to support an indictment for manslaugh-
ter.— R. v. Dugal, 4 Q. L. R. 350.
One who points a gun at another person, without pre-
viously examining whether it be loaded or not, will, if the
weapon should accidentally go off and kill him towards
whom it is pointed, be guilty of manslaughter. — R. v.
Jones, 12 Cox, 628. See R. v. Weston, 14 Cox, 346.
Three persons went out together for rifle practice. They
selected a field near to a house, and put up a target in a
138 OFFENCES AGAINST THE PERSON.
tree at a distance of about a hundred yards. Four or five
shots were fired, and by one of them a boy who was in a
tree in a garden, at a distance of three hundred and ninety-
three yards, was killed. It was not clear which of the three
persons fired the shot, that killed the boy. Held, that all
three were guilty of manslaughter. — R. v. Salmon, 14 Cox,
494.
If an injury is inflicted by one man upon another, which
compelled the injured man, under medical advice, to sub-
mit to an operation during which he dies, for that death
the assailant is guilty of manslaughter. — R. v. Davis, 15
Cox, 174.
An indictment for manslaughter will not lie against the
managing director of a Eailway Company by reason of the
omission to do something which the Company, by its char-
ter, was not bound to do, although he had personally pro-
mised to do it. — Ex parte, Brydges, 18 L. C. J. 141.
An indictment contained two counts, one charging the
prisoner with murdering M. J. T., on the 10th of November,
1881 ; the other with manslaughter of the said M. J. T.,
on the same day. The Grand Jury found a "true bill."
A motion to quash the indictment for misjoinder was
refused, the counsel for the prosecution electing to proceed
on the first count only.
Held, affirming the judgment of the Supreme Court of
New Brunswick, that the indictment was sufficient.
The prisoner was convicted of manslaughter in killing
his wife, who died on the 10th Nov., 1881. The immediate
cause of her death was acute inflammation of the liver,
which the medical testimony proved might be occasioned
by a bl or fall against a hard substance. About three
weeks before her death (17th October preceding), the pris-
oner , i d knocked his wife down with a bottle ; she fell
OFFENCES AGAINST THE PERSON. 139
against a door, and remained on the floor insensible for
some time ; she was confined to her bed soon afterwards and
never recovered. Evidence was given of frequent acts of
violence committed by the prisoner upon his wife, within
a year of her death, by knocking her down and kicking her
in the side.
The following questions were reserved, viz., whether
the evidence of assaults and violence committed by the
prisoner upon the deceased, prior to the 10th Xov. or the
17th Oct., 1881, was properly received, and whether there
was any evidence to leave to the jury to sustain the charge
in the first count of the indictment.
Held, affirming the judgment of the Supreme Court of
New Brunswick, that the evidence was properly received,
and that there was evidence to submit to the jury that the
disease which caused her death was produced by the inju-
ries inflicted by the prisoner. — Theal v. R.t 7 S. C. R.
397.
A corporal was tried for murder and convicted of man-
slaughter. The evidence showed that W. (the deceased),
having been confined for intoxication, defendant with two
men was ordered by a sergeant to tie him so that he
could not make a noise. The order was not executed so
as to stop the noise, and a second order was given to tie
W. so that he could not shout. To effect this defendant
caused W. to be tied in a certaiti manner, and he died in
that position.
Held, that whether the illegality consisted in the order
of the sergeant, or in the manner in winch it was carried
out, the defendant might be properly convicted.
Held, also, that the jury were justified in finding that
the death of W. was caused or accelerated by the way in
which he was tied by defendant, or by his directions*
—The, Queen v. Stmue, 2 G. & 0. (X. 8.) 121.
140 OFFENCES AGAINST THE PEESON.
In the North West Territories it is not necessary that a
trial for murder should be based upon an indictment by a
grand jury or a coroner's inquest. — The Queen v. O'Connor,
2 Man. L. R. 235.
As to insanity as a defence in criminal cases, see The
Queen v. Riel, 2 Man. L. R. 321.
Evidence of one crime may be given to show a motive for
committing another ; and where several felonies are part
of the same transaction evidence of all is admissible upon
the trial of an indictment for any of them ; but where a
prisoner indicted for murder, committed while resisting
constables about to arrest him, had, with others, been
guilty of riotous acts several days before, it is doubtful if
evidence of such riotous conduct is admissible, even for
the purpose of showing the prisoner's knowledge that he was
liable to be arrested, and, therefore, had a motive to resist
the officers. — The Queen v. Chasson, 3 Pugs. (N. B.)
546.
As to the admissibility of dying declarations, the most
recent cases are : R. v. Morgan, 14 Cox, 337 ; R. v.
Bedingfteld, 14 Cox, 341 ; R. v. Hubbard, 14 Cox, 565 ;
R. v. Osmand, 15 Cox, 1 ; R. v. Ooddard, 15 Cox, 7;
R. v. Smith, 16 Cox, 170.
CHAPTER 162.
AN ACT RESPECTING OFFENCES AGAINST THE
PERSON.
H
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
1. In this Act, unless the context otherwise requires, the expression
" loaded arms " includes any gun, pistol or other arm loaded in the
barrel with gunpowder or other explosive substance, and ball, shot,
slug or other destructive material, or charged with compressed air,
and having ball, shot, slug or other destructive material in the barrel,
although the attempt to discharge the same fails — 32-33 F., c. 20,
*. 18. Imp. Act, 24-25 V., ft 100^ s. 19.
"This clause is new, and is introduced to meet every
case where a prisoner attempts to discharge a gun, etc.,
loaded in the barrel, but which misses fire for want of
priming, or of a copper cap, or from any like cause. R.
v. Carr, R. <t R. 377 ; Anon, 1 Russ. 979 ; and R v.
Harris, C. & P. 159, cannot therefore be considered as
authorities under this Act." — Greaves' Note.
2. Every one who is convicted of murder shall suffer death as a
felon.— 32-33 V., c 20, s. 1. 24-25 V., c. 100, s. 1, Imp.
Form of indictment in second schedule of Procedure
Act.
Upon this indictment, the defendant may be acquitted
of the murder and found guilty of manslaughter.
Sec. 109 of Procedure Act as to form of indictment, and
sec. 9 as to the venue in certain cases — Not triable at
Quarter Sess. Sec. 4 Procedure Act.
3. Every one who, —
(a.) Conspires, confederates or agrees with any person to murder
142 OFFENCES AGAINST THE PEESON.
any other person, whether the person intended to be murdered ia a
subject of Her Majesty or not, or is within the Queen's dominions or
not, or —
(b.) Solicits, encourages, persuades, endeavors to persuade, or pro-
poses to any person to nuirder any other person, whether the person
whose murder is solicited, encouraged or attempted to be procured is
a subject of Her Majesty or not, or within the Queen's dominions or
not, —
Is guilty of a misdemeanor, and liable to ten years' imprisonment.
—32-33 V., c. 20, s. 3. 24-25 V., c. 100, s. 4, Imp.
Indictment That J. S., J. T., and E. T., on
unlawfully and wickedly did conspire, confederate
and agree together one J. N. feloniously, wilfully, and of
their malice aforethought to kill and murder, against the
form (you may add counts charging the defen~
dants or any of them with " soliciting, encouraging, etc.,
or endeavoring to persuade, etc., if the facts warrant such
a charge." — Archbold.
See 1 Russ. 967 ; 3 Russ. 664.— R. v. Bernard, 1F.&F.
240.
In R. v. Banks, 12 Cox, 393, upon an indictment
under this clause, the defendants were convicted of an
attempt to commit the misdemeanor charged ; In R. v.
Most, 14 Cox, 583, the defendant having written a news-
paper article, encouraging the murder of foreign potentates,
was found guilty of an offence under this clause.
4. Every accessory after the fact to murder is liable to imprison-
ment for life.-32-33 V., c. 26, s. 4. 24-25 V., c. 100, s, 67, Imp.
6. Every one who is convicted of manslaughter is liable to impris-
onment for life, or to pay such fine as the Court awards, in addition
to or without any such imprisonment. — 32-33 V., c. 20, s. 5. 24-25 V.,
c. 100, s. 5, Imp.
Form of indictment in second schedule of Procedure
Act. Also sec. 109, and sec. 9 of Procedure Act.
6. No punishment or forfeiture shall be incurred by anyp erson
OFFENCES AGAINST THE PERSON. 143
who kills another by miefortune, or in his own defence, or in any
other manner without felony.— 32-33 V., c. 20, *• 7. 24-25 V., c. 100,
s. 7, Imp.
Homicide in self-defence, i.e., committed se et sua de~
fendendo in defence of a man's person or property, upon
some sudden affray, has been usually classed with homi-
cide per infortunium, under the title of excusable, as
distinct from justifiable, because it was formerly considered
by the law as in some measure blameable, and the person
convicted either of that or of homicide by misadventure
forfeited his goods. The above clause has put an end to
these distinctions, which Foster says " had thrown some
darkness and confusion upon this part of the law." — Fost.
273.
Homicide se defendendo seems to be where one, who
has no other possible means of preserving his life from one
who combats with him on a sudden quarrel, or of defending
his person from one who attempts to beat him (especially
if such attempt be made upon him in his own house), kills
the person by whom he is reduced to such inevitable
necessity. And not only he, who on assault retreats to a
wall or some such straight, beyond which he can go no
farther, before he kills the other, is judged by the law to
act upon unavoidable necessity; but also he who being
assaulted in such a manner and such a place, that he
cannot go back without manifestly endangering his life,
kills the other without retreating at all. — 1 Hawkins, c.
11, s. 13-14.
In the case of justifiable self-defence, the injured party
may repel force by force in defence of his person, habita-
tion or property against one who manifestly intendeth
and endeavoreth by violence or surprise to commit a
known felony upon either. In these cases he is not
144 OFFENCES AGAINST THE PERSON.
obliged to retreat, but may pursue his adversary till he
flndeth himself out of danger, and if in a conflict between
them he happeneth to kill, such killing is justifiable. —
Fost. 273.
Before a person can avail himself of the defence that
he used a weapon in defence of his life, he must satisfy
the jury that the defence was necessary, that he did all
he could to avoid it, and that it was necessary to protect
himself from such bodily harm as would give him a
reasonable apprehension that his life was in immediate
danger. If he used the weapon having no other means of
resistance and no means of escape, in such cases, if he
retreated as far as he could, he would be justified. — B.
v. Smith, 8 C. & P. 160; B. v. Bull, 9CJP. 22.
Under the excuse of self-defence, the principal civil
and natural relations are comprehended ; therefore master
and servant, parent and child, husband and wife, killing
an assailant in the necessary defence of each other res-
pectively, are justified; the act of the relation being con-
strued as the act of the party himself. — 1 Hale, 484.
Chance medley, or as it was sometimes written, chaud
medley, has been often indiscriminately applied to any
manner of homicide by misadventure; its correct inter-
pretation seems to be a killing happening in a sudden
encounter ; it will be manslaughter or self-defence accord-
ing to whether the slayer was actually striving and
combating at the time the mortal stroke was given, or
had bond fide endeavored to withdraw from the contest,
and afterwards, being closely pressed, killed his antagon-
ist to avoid his own destruction ; in the latter case, it
will be justifiable or excusable homicide, in the former,
manslaughter. — 1 Buss. 888.
A man is not justified in killing a mere trespasser ; but
OFFENCES AGAINST THE PERSON. 145
if, in attempting to turn him out of his house, he is
assaulted by the trespasser he may kill him, and it will
be se defendendo, supposing that he was not able by any
other means to avoid the assault or retain his lawful pos-
session, and in such a case, a man need not fly as far as
he can as in other cases of se defendendo, for he has a right
to the protection of his own house.-' 1 Hale, 485.
But it would seem that in no case is a man justified in
intentionally taking away the life of a mere trespasser,
his own life not being in jeopardy ; he is only protected
from the consequences of such force as is reasonably
necessary to turn the wrong-doer out. A kick has been
held an unjustifiable mode of doing so. — Child's case, 2
Lewin, 214: throwing a stone has been held a proper
mode. — Hinehclifte's Case, 2 Lewin, 161.
Homicide committed in prevention of a forcible and
atrocious crime, amounting to felony, is justifiable. As if a
man come to burn my house, and I shoot out of my house,
or issue out of my house and kill him. So, if A. makes an
assault upon B„ a woman or maid, with intent to ravish her,
and she kills him in the attempt, it is justifiable, because
he intended to commit a felony. And not only the person
upon whom a felony is attempted may repel force by
force, but also his servant or any other person present
may interpose to prevent the mischief ; and if death
ensued, the party so interposing will be justified; but the
attempt to commit a felony should be apparent and not
left in doubt, otherwise the homicide will be manslaughter
at least ; and the rule does not extend to felonies without
force, such as picking pockets, nor to misdemeanors of
any kind.— 2 Burn, 1314.
It should be observed that, as the killing in these cases
is only justifiable on the ground of necessity, it cannot be
L
146 OFFENCES AGAINST THE PEKSON.
justified unless all other convenient means of preventing
the violence are absent or exhausted ; thus a person set
to watch a yard or garden is not justified in shooting one
who comes into it in the night, even if he should see him
go into his master's hen roost, for he ought first to see if
he could not take measures for his apprehension ; but if,
from the conduct of the party, he has fair ground for
believing his own life in actual and immediate danger,
he is justified in shooting him. — R. v. Scully, 1 C. & P.
319. Nor is a person justified in firing a pistol on
every forcible intrusion into his house at night ; he ought,
if he have reasonable opportunity, to endeavour to remove
him without having recourse to the last extremity. —
Meade's Case, 1 Lewin, 184.
As to justifiable homicide by officers of justice or other
persons in arresting felons, see under the heads Murder
and Manslaughter. Also, Foster, 258. As to homicide
by misadventure, 2 Burn, 316.
7. Every offence which, before the abolition of the crime of petit
treason, would have amounted to petit treason, shall be deemed to be
murder only, and no greater offence. — 32-33 V., c. 20, s. 8, part.
24-25 V., c. 100, s. 8, Imp.
Petit treason was a breach of the lower allegiance of
private and domestic faith, and considered as proceeding
from the same principle of treachery in private life as
would have led the person harboring it to have conspired
in public against his liege lord and sovereign. At common
law, the instances of this kind of crime were somewhat
numerous and involved in some uncertainty ; but by the
25 Edw. 3, ch. 2, they were reduced to the following cases :
1. Where a servant killed his master. 2. Where a wife
killed her husband. 3. Where an ecclesiastical person,
secular or regular, killed his superior, to whom he owed
OFFENCES AGAINST THE PERSON. 147
faith and obedience. It was murder aggravated by the
circumstance of the allegiance which the murderer owed
to the deceased; and in consequence of that circumstance
of aggravation, the judgment upon a conviction was more
grievous than in murder. Petit treason is now nothing
more than murder. — Greaves' note, 1 Russ. 710.
ATTEMPTS TO MURDER.
8. Every one who, with intent to commit murder, administers or
causes to be administered, or to be taken by any person, any poison
or other destructive thing, or by any means whatsoever wounds or
causes any grievous bodily harm to any person, is guilty of felony,
and liable to imprisonment for life.— 40 V., c. 28, s. 1. 24-25 V., c 100,
a. 11, Imp.
In R. v. Lawless, Arthabaska, Nov., 1872, Taschereau
(H. E.), J. an indictment under this sect, that"
in and upon one Kose Ann Mace unlawfully did make an
assault, and the said Eose Ann Mace did beat, wound
and ill-treat with intent then and there, the said
Eose Ann Mace wilfully, feloniously and of his malice
aforethought to kill and m urder " was quashed upon
demurrer for want of the word " feloniously " before
" unlawfully," and before " did beat wound and ill treat."
Amendment refused. But the indictment was good as
for a misdemeanor under sec. 34-, post.
Indictment for administering poison with intent to
murder. — The Jurors for Our Lady the Queen upon
their oath present, that J. S., on feloniously and
unlawfully did administer to one A. B. (administer or
cause to be administered to or to be taken by any person),
a large quantity, to wit, two drachms of a certain deadly
poison called white arsenic, (any poison or other destruc-
tive thing), with intent thereby then feloniously, wilfully,
and of his malice aforethought the said A. B. to kill and
48 OFFENCES AGAINST THE PERSON.
murder, against the form of the statute in such case made
and provided, and against the peace of Our Lady the
Queen, her crown and dignity. (Add counts stating that
the defendant feloniously and unlawfully, "did cause to
be administered to " and feloniously and unlawfully,
" did cause to be taken by" a large quantity, etc., and
if the description of poison be doubtful, add counts
describing it in different ways and one count stating it
to be " a certain destructive thing to the jurors aforesaid
unknown.")
The indictment must allege the thing administered to
be poisonous or destructive ; and therefore an indictment
for administering sponge mixed with milk, not alleging
the sponge to be destructive, was holden bad. — R. v. Pow-
ler, 4C.&P. 571.
If there be any doubt whether the poison was intended
for A. B. add a count, stating the intent to be to u commit
murder" generally. R. v. Ryan, 2 M . & Rob. 213; jB. v.
Dujfin, R. & R. 365.
If a person mix poison with coffee, and tell another
that the coffee is for her, and she takes it in consequence,
it seems that this is an administering ; and, at all events,
it is causing the poison to be taken. In R. v. Harley}
4 C. & P. 369, it appeared that a coffee pot, which was
proved to contain arsenic, mixed with coffee, had been
placed by the prisoner by the side of the grate : the prose-
cutrix was going to put out some tea, but on the prisoner
telling her that the coffee was for her, she poured out
some for herself, and drank it, and it about five minutes
became very ill. It was objected that the mere mixing of
poison, and leaving it in some place for the person to take
it was not sufficient to constitute an administering. — Park,
J., said : " There has been much argument whether, in this
OFFENCES AGAINST THE PERSON. 149
case, there has been an administering of this poison. It
has been contended that there must be a manual delivery
of the poison, and the law, as stated in Ryan & Moody's
Reports, goes that way (R. v. Cadman, 1 Moo. C. C. 114) ;
but as my note differs from that report, and also from my
own feelings, I am inclined to think that some mistake
has crept into that report. It is there stated that the
judges thought the swallowing of the poison not essential,
but my recollection is, that the judges held just the con-
trary. I am inclined to hold that there was an administer-
ing here ; and I am of opinion that, to constitute an
administering it is not necessary that there should be a
delivery by the hand." — 1 Buss. 988, and Greaves, note
n. to it.
An indictment stating that the prisouergave and admin-
istered poison is supported by proof that the prisoner
gave the poison to A. to administer as a medicine to B.
with intent to murder B. and that A. neglecting to do so,
it was accidentally given to B. by a child, the prisoner's
intention to murder continuing. — R. v. Michael, 2 Moo*
C. C. 120.
Where the prisoner, having mixed corrosive sublimate
with sugar, put it into a parcel, directing it to "Mrs.
Daws, Townhope," and left it on the counter of a trades-
man, who sent it to Mrs. Daws who used some of the
sugar, Gurney held it to be an administering. — R. v.
Lewis, 6 C. <Sc P. 161.
And if the indictment contains a count " with intent to
commit murder," generally, the proceeding case, R. v.
Lewis, is clear law. — Archbold, 653.
Evidence of administering at different times may be
given to show the intent. — Archbold, 650; 1 Russ. 1004
et seq. The intent to murder must be proved by circum-
stances from which that intent may be implied.
150 OFFENCES AGAINST THE PERSON.
Indictment for wounding with intent to murder. —
one J. N. feloniously and unlawfully did wound
(wound or cause any grievous bodily Jiarm) with intent
etc. (as in the last precedent). Add a count " with the
intent to commit murder" generally. — Archbold, 650.
The instrument or means by which the wound was
inflicted need not be stated, and, if stated, would not con-
fine the prosecutor to prove a wound by such means. —
R. v. Briggs, 1 Moo. G. C. 318.
As the general term " wound " includes every " stab ''
and " cut " as well as other wound, that general term haa
alone been used in these Acts. All therefore that it is
now necessary to allege in the indictment is, that the pris-
oner did wound the prosecutor ; and that allegation will ba
proved by any wound, whether it be a stab cut, or other
wound. Graves, Gons. Acts. 45. The word " wound "
includes incised wounds, punctured wounds, lacerated
wounds, contused wounds, and gunshot wounds. — Arch-
bold, 664.
But to constitute a wound, within the meaning of this
statute, the continuity of the skin must be broken. — R. v.
Wood, 1 Moo. G. G. 278.
The whole skin, not the mere cuticle or upper skin, must
be divided. — Archbold, 665.
But a division of the internal skin, within the cheek or
lip, is sufficient to constitute a wound within the statute.
— Archbold, 665.
The statute says " by any means whatsoever", so that it
is immaterial by what means the wound is inflicted, pro-
vided it be inflicted with the intent alleged. — R. v.
Harris, R. v. Stevens, R. v. Murrow and Jenning's Case,
and other similar cases cannot therefore be considered as
authorities under the present law." '-Greaves, Cons. Acts, 45.
OFFENCES AGAINST THE PERSON. 151
It it not necessary that the prosecutor should be in fact
wounded in a vital part, for the question is not what the
wound is, but what wound was intended. — R. v. Hunt, 1
Moo. C. C. 93.
There does not seem any objection to insert counts on the
8th and 13th sees. (Canada) ; and it is in all cases advisable
where it is doubtful whether the prisoner intended to
murder or merely to maim. — 3 Burn, 752. — ArchbolcU
form of indictment, 650 ; R. v. Strange, 8 C. & P.
172 ; R. v. Murphy, 1 Cox, 108.
On the trial of any indictment for wounding with intent
to murder, if the intent be not proved, the jury may convict
of unlawfully wounding. — Archbold.
This verdict would fall under sec. 189 of the Procedure
Act ; see post.
Archbold, 650, says that a defendant cannot, on an in-
dictment for the felony, plead guilty to the misdemeanor.
In R. v. Roxburg, 12 Cox, 8, the defendant was allowed
to plead guilty of a common assault.
The defendant may also be found guilty of an attempt
to commit the felony charged : Sec. 183, Procedure Act.
The jury also find a verdict of common assault, if the
evidence warrants it. Sec. 191, Procedure Act ; R. v. Cruse,
2 Moo. C. C. 53 ; R. v. Archer, 2 Moo. C. C. 283 ; though
not on an indictment for poisoning. — R. v. Delawarth, 2 M.
& Rob. 561 ; R. v. Draper, 1 C. & K. 176.
An attempt to commit suicide remains a misdemeanor
at common law, and is not an attempt to commit murder
within this statute. — R. v. Burgess, L. <fc C. 258.
In an indictment for wounding with intent to murder,
the words " feloniously and of his malice aforethought " are
necessary. — R. v. Buhner, 5 L. N. 287 ; Ramsay's App.
Cos. 189.
152 OFFENCES AGAINST THE PERSON.
9. Every one who, by the explosion of gunpowder, or other explo-
sive substance, destroys or damages any building, with intent to
commit murder, is guilty of felony, and liable to imprisonment for
life.— 32-33 V., c. 20, s. 11. 24-25 V., c. 100, s. 12,Imp.
Indictment feloniously, unlawfully and mali-
ciously did, by the explosion of a certain explosive sub-
stance, that is to say, gunpowder, destroy (destroy or
damage) a certain building situate with intent
thereby then feloniously, wilfully and of his malice afore-
thought, one J. N". to kill and murder, against (Add
a count, stating the intent to be generally " to commit
murder")
In R. v. Ryan, 2 M . & Rob. 213, Parke and Alderson
held that a count alleging with intent to commit murder,
generally, is sufficient.
The jury may return a verdict of guilty of an attempt
to commit the felony. Sec. 183, Procedure Act.
10. Every one who, with intent to commit murder, sets fire to any
ship or vessel, or any part thereof, or any part of the tackle, apparel
or furniture thereof, or any goods or any chattels being therein, or
casts away or destroys any ship or vessel, is guilty of felony, and lia-
ble to imprisonment for life.— 32-33 V., c 20, s. 12. 24-25 V., c. 100
*. 13, Imp.
Indictment. — feloniously and unlawfully did
set fire to (cast away or destroy) a certain ship called
with intent thereby then feloniously, wilfully and
of his malice aforethought to kill and murder one
(Add a count stating the intent to " commit murder "
generally).
11. Every one who, with intent to commit murder, attempts to
administer to, or attempts to cause to be administered to, or to be
taken by any person, any poison or other destructive thing, or shoots
at any person, or, by drawing a trigger or in any other manner,
attempts to discharge any kind of loaded arms at any person, or at-
tempts to drown, suffocate or strangle any person, whether any bodily
OFFENCES AGAINST THE PERSON. 153
injury is effected or not, is guilty of felony, and is liable to imprison-
ment for life.— 32-33 V., c 20, s. 13. 24-25 V., c 100, s. 14, Imp.
If one draws, during a quarrel, a pistol from his pocket,
but is prevented from using it by another person, there is
no offence against this nor the following section. — R. v.
St-George, 9 C. & P. 483 ; R. v. Brown, 15 Cox, 199.
Greaves (Cons. Acts, 48) on this clause remarks :
u Where the prisoner delivered poison to a guilty agent,
with directions to him to cause it to be administered to
another in the absence of the prisoner, it was held that the
prisoner was not guilty of an attempt to administer poison,
within the repealed acts. R. v. Williams, 1 Den. 39 ;
and the words ' attempt to cause to be administered to, or
to be taken by ' were introduced in this section to meet
such cases."
Indictment for attempting to poison with intent. —
feloniously and unlawfully did attempt to admin-
ister (attempt to administer to, or attempt to cause to be
administered to, or to be taken by) to one J. N. a large
quantity, to wit, two drachms of a certain deadly poison
called white arsenic (any poison or other destructive thing),
with intent thereby then feloniously, wilfully, and of his
malice aforethought, the said J. N. to kill and murder,
against (Add a count stating the intent "to com-
mit murder," generally. Add counts charging that the
defendant " attempted to cause to be administered to'" and
that he " attempted to cause to be taken by J. JS. the
poison") — Archbold, 651.
In E. v. Cadman, 1 Moo. C. C. 114,th edefendant gave
the prosecutrix a cake containing poison, which the prose-
cutrix merely put into her mouth, and spit out again, and
did not swallow any part of it. It is said in Archbold, 651,
that these circumstances would now support an indict-
ment under the above clause.
154 OFFENCES AGAINST THE PEKSON.
Where the prisoner put salts of sorrel in a sugar basin,
in order that the prosecutor might take it with his tea, it
was held an attempt to administer. — R. v. Dale, 6 Cox,
547.
Indictment for attempting to drown with intent to
murder. — feloniously and unlawfully did take
one J. N. into both the hands of him the said J. S., and
feloniously and unlawfully did cast, throw, and push the
said J. N. into a certain pond, wherein there was a great
quantity of water, and did thereby then feloniously and
unlawfully attempt the said J. N. to drown and suffocate,
with intent thereby then feloniously, wilfully and of his
malice aforethought, the said J. N. to kill and murder,
against (Add a count charging generally that the
defendant did attempt to drown J. N. and counts charg-
ing the intent to be to commit murder). — Archbold, 652.
It has been held upon an indictment for attempting to
drown, it must be shown clearly that the acts were done
with intent to drown. An indictment alleged that the pris-
oner assaulted two boys, and with a boat-hook made
holes in a boat in which they were, with intent to drown
them. The boys were attempting to land out of a boat
they had punted across a river, across which there was a
disputed right of ferry ; the prisoner attacked the boat with
his boat-hook in order to prevent them, and by means of
the holes which he made in it caused it to fill with water,
and then pushed it away from the shore, whereby the boys
were put in peril of being drowned. He might have got
into the boat and thrown them into the water ; but he con-
fined his attack to the boat itself, as if to prevent the land-
ing, but apparently regardless of the consequences. Coltman,
J., stopped the case, being of opinion that the evidence
against the prisoner showed his intention to have been
OFFENCES AGAINST THE PEESON. 155
rather to prevent the landing of the boys than to do them
any injury. — Sinclair's Case, 2 Lew. 49; R. v. Dart, 14-
Cox, 143.
Indictment for shooting with intent to murder
a certain gun, then loaded with gunpowder and divers
leaden shot, at and against one J. IS", feloniously and un-
lawfully did shoot, with intent thereby then feloniously
{as in the last precedent.) {Add also counts
stating " with intent to commit murder " generally.
Also a count for shooting with intent to maim, etc., under
sect, 13, post). — Archbold, 652.
In order to bring the case within the above section, it
must be proved that the prisoner intended by the act
charged to cause the death of the suffering party. This
will appear either from the nature of the act itself, or from
the conduct and expressions used by the prisoner. —
Roscoe, 720.
Upon an indictment for wounding Taylor with intent
to murder him, it appeared that the prisoner intended to
murder one Maloney, and, supposing Taylor to be Maloney,
shot at and wounded Taylor; and the jury found that the
prisoner intended to murder Maloney, not knowing that
the party he shot at was Taylor, but supposing him to be
Maloney, and that he intended to murder the individual
he shot at, supposing him to be Maloney, and convicted
the prisoner ; and upon a case reserved, it was held that
the conviction was right, for though he did not intend to
kill the particular person, he meant to murder the man at
whom he shot. — R. v. Smith, Dears. 559 ; 1 Russ. 1U01.
It seems doubtful whether it must not appear, in order
to make out the intent to murder, that that intent existed
in the mind of the defendant at the time of the offence, or
whether it would be sufficient if it would have been
murder had death ensued. — Archbold, 652.
156 OFFENCES AGAINST THE PERSON.
On this question, Graves, note g, 1 Russ. 1003,
remarks: "It seems probable that the intention of the
Legislature, in providing for attempts to commit murder,
was to punish every attempt where, in case death had
ensued, the crime would have amounted to murder
The tendency of the cases, however, seems to be that an
actual intent to murder the particular individual injured
must have been showed Where a mistake of one
person for another occurs, the cases of shooting, etc.,
may, perhaps, admit of a different consideration from the
cases of poisoning. In the case of shooting at one person
under the supposition that he is another, although there be
a mistake, the prisoner must intend to murder that indivi-
dual at whom he shoots : it is true he may be mistaken in
fact as to the person, and that it may be owing to such
mistake that he shoots at such person, but still he shoots
with intent to kill that person. So in the case of cutting ;
a man may cut one person under a mistake that he is
another person, but still he must intend to murder the
man whose throat he cuts. In R. v. Mister, the only
count charging an intent to murder was the first, and
that alleged the intent to be to murder Mackreth; and
although on the evidence it was perfectly clear that Mister
mistook Mackreth for Ludlow, whom he had followed for
several days before, yet he was convicted and executed,
and I believe the point never noticed at all. The case of
poisoning one person by mistake for another seems diffe-
rent, if the poison be taken in the absence oft he prisoner j
for in such case, he can have no actual intent to injure
that person. These difficulties, however, seem to be obvia-
ted by the present statute, which, instead of using the
words " with intent to murder such person, " has the words
"with intent to commit murder" In all cases of
OFFENCES AGAINST THE PERSON. 157
doubt, as to the intention, it would be prudent to insert
one count for shooting at A., with intent to murder him ;
another " with intent to commit murder ; " and a third for
shooting at A. with intent to murder the person really
intended to be killed, and if the party intended to be killed
were unknown, a count for shooting at A. with intent to
murder a person to the jurors unknown.
In B. v. Stopford, 11 Cox, 643, Brett, J., after con-
sulting Mellor, J., held, following B. v. Smith, supra,
that an indictment charging the prisoner with wounding
Haley, with intent to do him, Haley, grievous bodily
harm, was good, although it was proved that the priso-
ner intended to wound somebody else, and that he mistook
Haley for another man. — See B. v. Hunt, 1 Moo. C. C. 93.
A bodily injury is, in cases under this section, not
material, " whether any bodily injury be effected or not."
Indictment for attempting to shoot icith intent, etc. —
did, by drawing the trigger (drawing a trigger
or in any other manner) of a certain pistol then loaded
in the barrel with gunpowder and one leaden bullet, felon-
iously and unlawfully attempt to discharge the said pistol
at and against one J. N. with intent (as in the last
precedent.) (Add a count charging an intent to commit
murder, and counts for attempting to shoot with intent
to maim, under sect. 13. The indictment need not in the
latter clause describe it as " the said pistol so loaded as
aforesaid.") — Archbold ; B. v. Baker, 1 C. & K. 2-54.
A verdict of common assault may, in certain cases, be
given, upon an indictment under this section. — Sect. 191,
Procedure Act.
12. Every one who, by any means other than those specified in
any of the preceding sections of this Act, attempts to commit murder,
is guilty of felony, and liable to imprisonment for life. — 32-33 V., c.
20, s. 14. 24-25 F., c 100, s. 15, Imp.
158 OFFENCES AGAINST THE PERSON.
See remarks under preceding section.
Indictment. — feloniously, unlawfully and mali-
ciously did, by then (state the act) attempt feloniously,
wilfully and of his malice aforethought, one J. N. to kill
feloniously, wilfully and of his malice aforethought and
murder against (Add a count charging the intent
to be to commit murder.) — Archbold, 655.
Greaves, on this clause, says (Cons. Acts, 48) :
"This section is entirely new, and contains one of the
most important amendments in these Acts. It includes
every attempt to murder not specified in any preceding
section. It will therefore embrace all those atrocious
cases where the ropes, chains, or machinery used in
lowering miners into mines have been injured with
intent that they may break, and precipitate the miners
to the bottom of the pit. So, also, all cases where steam
engines are injured, set on work, stopped, or anything
put into them, in order to kill any person, will fall into
it. So, also, cases of sending or placing infernal machines
with intent to murder. See R. v. Mountford, R. & M.
C. G. 441. Indeed, the malicious may now rest satisfied
that every attempt to murder, which their perverted
ingenuity may devise, or their fiendish malignity suggest,
will fall within some clause of this Act, and may be
visited with penal servitude for life. In any case where
there may be a doubt whether the attempt falls within
the terms of any of the preceding sections, a count framed
on this clause should be added."
13. Every one who, with intent to maim, disfigure or disable any
person, or to do some other grievous bodily harm to any person, or
with intent to resist or prevent the lawful apprehension or detainer of
any person, unlawfully and maliciously, by any means whatsoever,
wounds or causes any grievous bodily harm to any person, or shoots
at any person, or by drawing a trigger, or in any other manner,
OFFENCES AGAINST THE PERSON. 159
attempts to discharge any kind of loaded arms at any person, ie
guilty of felony, and liable to imprisonment for life.— 32-33 V.} c.
20, a. IT. 24-25 V., c. 100, s. 18, Imp.
An indictment charging that the prisoner did " inflict "
grievous bodily harm instead of " cause " is sufficient. —
R. v. Bray, 15 Cox, 197.
See section 1, supra, as to what constitutes a loaded
arm within the meaning of this Act.
Indictment for wounding with intent to maim —
That J. S., on one J. N. feloniously, un-
lawfully and maliciously did wound, with intent in so
doing, him the said J. N. thereby then to maim ; against
(Add count stating "with intent to disfigure,"
and one " with intent to disable." Also one stating
with " intent to do some grievous bodily harm." And
if necessary one "with intent to prevent (or resist) the
lawful apprehension o/.") — Archbold.
An indictment charging the act to have been done
" feloniously, wilfully and maliciously " is bad, the words
of the statute being " unlawfully and maliciously." —
R. v. Ryan, 2 Moo. C. C. 15. In practice the first count of
the indictment is generally for wounding with intent to
murder. These counts are allowed to be joined in the
same indictment, though the punishments of the several
offences specified in them are different. — Archbold.
The word " maliciously " in this section does not mean
with malice aforethought ; for if it did the offence would
be included under the 11th section. This clause includes
every wounding done without lawful excuse, with any
of the intents mentioned in it, for from the act itself
malice will be inferred.
The instrument or means by which the injury was
inflicted need not be stated in the indictment, and, if
160 OFFENCES AGAINST THE PERSON.
stated, need not be proved as laid. — R. v. Briggs, 1
Moo. C. G. 318. And in the same case, it was held that
upon an indictment which charged a wound to have been
inflicted by striking with a stick and kicking with the feet,
proof that the wound was caused either by striking with
a stick or kicking was sufficient, though it was uncertain
by which of the two the inj ury was inflicted.
In order to convict of the felony, the intent must be
proved as laid ; hence the necessity of several counts char-
ging the offence to have been committed with different
intents. If an indictment alleged that the defendant cut
the prosecutor with intent to murder, to disable, and to do
some grievous bodily harm, it will not be supported by
proof of an intention to prevent a lawful apprehension ; R.
v. Dujfbn, R. & R. 365 ; R. v. Boyce, 1 Moo. C. C. 29-; unless
for the purpose of effecting his escape the defendant also
harbored one of the intents stated in the indictment ; R. v.
Oillow, 1 Moo. C. G. 85 ; for where both intents exist, it is
immaterial which is the principal and which the subor-
dinate. Therefore, where, in order to commit a rape, the
defendant cut the private parts of an infant, and thereby
did her grievous bodily harm, it was holden that he was
guilty of cutting with intent to do her grievous bodily
harm, notwithstanding his principal object was to commit
the rape. — R. v. Cox, R. & R. 362. So also, if a person
wound another in order to rob him, and thereby inflict
grievous bodily harm, he may be convicted on a count
charging him with an intent to do grievous bodily harm. —
Archbold.
An indictment charging the prisoner with wounding A.
with intent to do him grievous bodily harm, is good,
although it is proved that he mistook A. for somebody
else, and that he intended to wound another person. —
R. v. Stopford, 11 Cox, 643.
OFFENCES AGAINST THE PERSON. 161
The prisoner was indicted for shooting at A. with intent
to do him grievous bodily harm. He fired a pistol into a
group of persons who had assaulted and annoyed him,
among whom was A., without aiming at A. or any one in
particular, but intending generally to do grievous bodily
harm, and wounded A. Held, on a case reserved, that he
was rightly convicted. — R. v. Fretwell, L. & C. 443.
With respect to the intents mentioned in the statute, it
may be useful to observe that to maim is to injure any
part of a man's body, which may render him in fighting
less able to defend himself, or annoy his enemy. To dis-
figure is to do some external injury which may detract
from his personal appearance ; and to disable, is to do
something which creates a permanent disability, and not
merely temporary injury. — Arckbold, 666. It is not neces-
sary that a grievous bodily harm should be either perma-
nent or dangerous ; if it be such as seriously to interfere
with health or comfort, that is sufficient ; and, therefore,
where the defendant cut the private parts of an infant, and
the wound was not dangerous, and was small, but bled a
good deal, and the jury found that it was a grievous bodily
harm, it was holden that the conviction was right. — R. v.
Cox, R. & R. 362.
"Where the intent laid is to prevent a lawful apprehen-
sion, it must be shown that the arrest would have been
lawful ; and where the circumstances are not such that the
party must know why he is about to be apprehended, it
must be proved that he was apprised of the intention to
apprehend him. — Arckbold, 667.
While the defendant was using threatening language to a
third person, a constable in plain clothes came up and in-
terfered. The defendant struck the constable with his fist,
and there was a struggle between them. The constable went
M
162 OFFENCES AGAINST THE PERSON.
away for assistance, and was absent for an hour ; he changed
his plain clothes for his uniform and returned to defen-
dant's house with three other constables. They forced the
door and entered the house. The defendant refused to come
down, and threatened to kill the first man who came up to
take him. The constables ran upstairs to take him, and he
wounded one of them in the struggle that took place. Held,
upon a case reserved, that the apprehension of the prisoner
at the time was unlawful, and that he could not be convicted
of wounding the constable with intent to prevent his lawful
apprehension. — R. v. Marsden, 11 Cox, 90.
Under an indictment for a felonious assault with intent
to do grievous bodily harm, a plea of guilty to a common
assault may be received, if the prosecution consents. — R.
v. Roxburg, 12 Cox, 8.
Upon an indictment for the felony under this clause,
the jury may find a verdict of guilty of an attempt to com-
mit it. — Sec. 183, Procedure Act.
A verdict of common assault may also be found. — Sec.
191, Procedure Act.
And, if the prosecutor fail in proving the intent, the
defendant, in virtue of sec. 189 of the Procedure Act, may
be convicted of the misdemeanor of unlawfully wounding,
and sentenced under said sect. — Archbold.
And where three are indicted for malicious wounding
with intent to do grievous bodily harm, the jury may con-
vict two of the felony and the third of unlawfully wound-
ing.— R. v. Cunningham, Bell, C. C. 72.
Where a prisoner was indicted for feloniously wounding
with intent to do grevious bodily harm.
Held, that the intention might be inferred from the aet.
—The Queen v. LeDante, 2Q.&0. (N. S.) 401.
L. was tried on an indictment under 32-33 V., c. 20,
OFFENCES AGAINST THE PERSON. 163
containing four counts. The first charged that he did
unlawfully, etc., kick, strike, wound and do grevious bodily-
harm to W., with intent, &c-, to maim ; the second charged
assault as in first with intent to disfigure ; the third
charged intent to disable ; the fourth charged the intent
to do some grevious bodily harm. The prisoner was
found guilty of a common assault. Held, that L. was
rightly convicted, sec. 51 of the act. 32-33 V., c. 20,
authorising such conviction. — The Queen v. Laskey, IP.
<£• B. (K B.) 194.
An indictment for doing grevious bodily harm, which
alleged that the prisoner did " feloniously " stab, cut and
wound, etc., instead of alleging, in the terms of the 17th
section of 32-33 V., c. 20, that he did "unlawfully" and
" maliciously " stab, etc., is good.
A defective indictment is amendable under 32-33 V., c.
29, s. 32, and any objection to it for any defect apparent
on the face thereof must be taken by demurrer or motion
to quash the indictment before the defendant has pleaded
and not afterwards. — The Queen v. Flynn, 2 P. & B.
(JS\ B.) 321.
14. Every one who unlawfully and maliciously wounds or inflicts
any grievous bodily harm upon any other person, either with or
without any weapon or instrument, is guilty of a misdemeanor, and
liable to three years' imprisonment. — 32-33 V., c. 20 s. 19, part.
24-25 F, e. 100, s. 18, Imp.
Indictment for unlawfully wounding one J . N.
unlawfully and maliciously did wound (wound or inflict
any grievous bodily harm upon) against the form
{Add a count chaxging that the defendant " did inflict
grievous bodily harm upon J. N") — Archbold, 668.
The act must have been done maliciously. Malice
would in most cases be presumed.) — 3 Bum, 754 ; jR. v.
MaHin, 14 Cox, 633.
164 OFFENCES AGAINST THE PERSON.
But general malice alone constitutes the offence.
Malice against the person wounded is not a necessary-
ingredient of the offence. So, if any one, intending to
wound A., accidentally wounds B., he is guilty of an
offence under this clause. — R. v. Latimer, 16 Cox, 70.
See remarks under sees. 11 and 13, ante.
Upon an indictment for assaulting, beating, wounding
and inflicting grievous bodily harm, the prisoner may be
convicted of a common assault. — R. v. Oliver, Bell, C.
C. 287.
Upon an indictment charging that the prisoner "unlaw-
fully and maliciously did assault one H. K., and did
then and there unlawfully and maliciously kick and
wound him, the said H. E., and thereby then and there
did unlawfully and maliciously inflict upon the said H. R.
grievous bodily harm, against" the jury may return
a verdict of guilty of a common assault merely. — R. v.
Yeadon, L. & C. 81.
In R. v. Taylor, 11 Cox, 261, the indictment was as
follows: — "That Taylor on unlawfully and
maliciously did wound one Thomas and the jurors
that the said Taylor did unlawfully and mali-
ciously inflict grievous bodily harm upon the said Thomas."
Upon this indictment the jury returned a ver-
dict of common assault, and upon a case reserved, the
conviction was affirmed.
In R. v. Canwell, 11 Cox, 263, a verdict of common
assault was also given upon an indictment containing
only one count for maliciously and unlawfully inflicting
grievous bodily harm, and the conviction was affirmed,
upon a case reserved.
In R. v. Ward, 12 Cox, 123, the indictment charged
a felonious wounding with intent to do grevious bodily
0FFE2SCES AGAINST THE PERSON. 165
harm. The jury returned a verdict of unlawful wounding,
under 14-15 V., c. 19, s. 5 (sec. 189 of the Procedure
Act). Upon a case reserved, it was held that the words
*'* maliciously and " must be understood to precede the
word unlawfully in this section, and that to support the
verdict, the act must have been done maliciously as well
as unlawfully.
Greaves, in an article on this case, 1 Laiu Magazine,
379, censures severely this ruling. According to him, a
new offence, that of unlawful wounding, was created by
that clause, and the word maliciously had been purposely
omitted from it. In a preceding number of the same
magazine, p. 269, an anonymous writer attacks the
decision in Ward's case from another point of view.
The shooting was certainly proved not to have been
intended to strike the prosecutor, but the Court, by
twelve judges against three, found that there was proof
of malice sufficient to support the conviction. On this
appreciation of the facts of the case, this anonymous
writer censures the judgment, at the same time admit-
ting its correctness, so far as the Court held the mali-
ciously as necessary as the unlawfully under this clause,
though the word maliciously had been dropped in the
statute.
The defendant may be found guilty of the attempt to
commit the misdemeanor charged under sec. 183 of the
Procedure Act.
And if, upon the trial of any person for any misdemea-
nor, it appears that the facts given in evidence, while
they include such misdemeanor, amount in law to a felony,
such person shall not, by reasou thereof, be entitled to
be acquitted of such misdemeanor (and the person tried
for such misdemeanor, if convicted, shall not be liable to
166 OFFENCES AGAINST THE PEESON.
be afterwards prosecuted for felony, on the same facts),
unless the Court before which such trial is had thinks fit,
in its discretion, to discharge the jury from giving any
verdict upon such trial, and to direct such person to be
indicted for felony, in which case such person may be
dealt with in all respects as if he had not been put
upon his trial for such misdemeanor. (Procedure Act, sec.
184.)
15. Every one who, with intent thereby to enable himself or any
other person to commit, or with intent thereby to assist any other
person in committing any indictable offence, or by any means what-
soever attempts to choke, suffocate or strangle any other person, or
by any means calculated to choke, suffocate or strangle, attempts to
render any other person insensible, unconscious or incapable of resis-
tance, is guilty of felony, and liable to imprisonment for life, and to
be whipped— 32-33 V., c. 20, s. 20. 24-25 V., c. 100, s. 21, and 26-27
V., c. 44, Imp.
Indictment. — feloniously and unlawfully did
attempt by then (state the means or by any means what-
soever) to choke, suffocate and strangle one J. N. (suffo-
cate or strangle any person, or ), with intent thereby
then to enable him, the said A. B., the monies, goods, and
chattels of the said J. N., from the person of the said J. N".,
feloniously and unlawfully to steal, take and carry away,
against the form ( Add counts varying the statement
of the overt acts and of the intent.) — Archbold, 669.
This clause is new, and is directed against those attempts
at robbery which have been accompanied by violence to
the throat. — Greaves, Cons. Acts, 54.
The clause gives the intent "to commit any indictable
offence ;" that is to say, either a misdemeanor or a felony.
In certain cases, a verdict of common assault may be
given upon an indictment for this felony. — Procedure
Act, sec. 191.
OFFENCES AGAINST THE PERSON. 167
16. Every one who, with intent thereby to enable himself or any
other person to commit, or with intent thereby to assist any other
person in committing any indictable offence, unlawfully applies or
administers to, or causes to be taken by, or attempts to apply or ad-
minister to, or attempts or causes to be administered to or taken by
any person, any chloroform, laudanum or other stupefying or over-
powering drug, matter or thing, is guilty of felony, and liable to impris-
onment for life, and to be whipped— 32-33 V.,c. 20, s. 21.
Indictment. — feloniously and unlawfully did
apply and administer to one J. N. (or cause ) certain
chloroform with intent thereby (intent as in the last
precedent).
If it be not certain that it was chloroform, or laudanum,
that was administered, add a count or counts stating it to
be " a certain stupefying and overpowering drug and matter
to the jurors aforesaid unknown." Add also counts varying
the intent if necessary.
As to what constitutes an " administering, or attempting
to administer," see remarks under sects. 8 and 11, ante.
17. Every one who unlawfully and maliciously administers to, or
causes to be administered to or taken by any other person, any poison
or other destructive or noxious thing, so as thereby to endanger the
life of such person, or so as thereby to inflict upon such person any
grievous bodily harm, is guilty of felony, and liable to ten years' im-
prisonment.—32-33 V., c. 20, t. 24. 24^-25 V., c. 100, *. 23, Imp.
See under next section.
18. Every one who unlawfully and maliciously administers to, or
causes to be administered to or taken by any other person, any poison
or other destructive or noxious thing, with intent to injure, aggrieve
or annoy such person, is guilty of a misdemeanor, and liable to three
years' imprisonment.— 32-33 V., c. 20, s. 23. 24-25 F., c. 100, *. 24,
Imp.
Under an indictment under sec. 17, the jury may find
prisoner guilty of offence provided for in sec. 18. — Sec. 190,
Procedure Act.
Indictment for administering poison so as to endan-
168 OFFENCES AGAINST THE PERSON.
ger life. — feloniously, unlawfully and maliciously
did administer to one J. N. (or cause ), a large
quantity, to wit, two drachms of a certain deadly poison
called white arsenic, and thereby then did endanger the life
of the said J. N. against
Add a count stating that the defendant " did cause to
be taken by J. N. a large quantity " and if the
kind of poison be doubtful, add counts describing it in
different ivays, and also stating it to be " a certain des-
tructive thing, (or a certain noxious thing) to the jurors
aforesaid unknown." There should be also a set of
counts stating that the defendant thereby " inflicted upon
J. N. grievous bodily harm." — Archbold.
Administering cantharides to a woman with intent to
excite her sexual passion, in order to obtain connexion
with her, is an administering with intent to injure, aggrieve
or annoy, within the meaning of the statute. — R. v.
Wilkins, L. & C. 89.
If the poison is administered merely with intent to injure,
aggrieve or annoy, which in itself would merely amount to
a misdemeanor under sect. 18, yet if it does in fact inflict
grievous bodily harm, this amounts to a felony under
section 17. — Tulley v. Corrie, 10 Cox, 640.
But to constitute this offence, the thing administered
must be noxious in itself, and not only when taken in
excess. — R. v. Hennah, 13 Cox, 547.
19. Every one who, being legally liable, either as a husband,
parent, guardian, or committee, master or mistress, nurse or otherwise,
to provide for any person as wife, child, ward, lunatic or idiot,
apprentice or servant, infant or otherwise, necessary food, clothing
ro lodging, wilfully and without lawful excuse, refuses or neglects to
provide the same, or unlawfully or maliciously does, or causes to be
done, any bodily harm to any such apprentice or servant, so that the
life of such apprentice or servant is endangered, or the health of such
apprentice or servant has been, or is likely to be, permanently injured,
is guilty of a misdemeanor, and liable to three years' imprisonment :
OFFENCES AGAINST THE PERSON. 169
2. In any prosecution of any person under this section, for refusing
or neglecting to provide necessary food, clothing or lodging for his
wife or child, his wife shall be competent to give evidence as a witness,
either for or against her husban«J, and the person charged shall be a
competent witness in his own behalf.— 32-33 V.,c. 20, s. 25. 49 F., c.
61, s. 1. 24-25 V., c. 100, s. 26, Imp.
The words in italics are not in the Imperial Statute.
They were in the bill as introduced in the House of
Lords, but were struck out by the Commons. — Greaves,
Cons. Acts, 56.
Indictment for not providing an apprentice vAth
necessary food That J. S., on then being the
master of J. N. his apprentice, and then being legally
liable to provide for the said J. N., as his apprentice as
aforesaid, necessary food (clothing or lodging), unlawfully,
wilfully and without lawful excuse did refuse and neglect
to provide the same, so that the life of the said J. N. was
thereby endangered (or the health of the said J. N. has
been or is likely to be permanently injured) against the
form (Add counts varying the statement of the
injury sustained.)
Prove the apprenticeship ; if it was by deed, by pro-
duction and proof of the execution of the deed, or in case
it be in the possession of the defendant, and there be no
counterpart, by secondary evidence of its contents, after
due notice given to the defendant to produce it. The
legal liability of the defendant to provide the prosecutor
wTith necessary food, clothing or lodging will be inferred,
even if it be not expressly stipulated for, from the appren-
ticeship itself. Prove the wilful refusal or neglect of the
defendant to provide the prosecutor with necessary
food, etc., as stated in the indictment. "Whether it be
necessary to prove that by such neglect the prosecutor's
life was endangered, or his health was or was likely to be
170 OFFENCES AGAINST THE PERSON.
permanently injured, depends upon the construction
which is to be put upon the statute. If the words " so
that the life of such person shall be endangered, or, etc.,"
apply to all the preceding matter, such proof will be
necessary ; if only to the branch of the section which
relates to the actual doing of bodily harm to the apprentice
or servant, such proof will be unnecessary. Until there
has been some decision on the subject, it will be safer to
allege " so that the life or health " as the case
may be, and to be prepared with evidence to sustain it.
It would seem indeed to be the better opinion, that the
words " so that, etc.," override all the preceding matter,
otherwise a mere single wilful refusal to provide a dinner
would be within the clause. Upon an indictment for
unlawfully and maliciously assaulting an apprentice or
servant, it is clear that such allegation and proof are
necessary. — Archbold.
An indictment alleged in the first count that the
prisoner unlawfully and wilfully neglected and refused to
provide sufficient food for her infant child five years old,
she being able and having the means to do so. The
second count charged that the prisoner unlawfully and
wilfully neglected and refused to provide her infant child
with necessary food, but there was no allegation that she
had the ability or means to do so. The jury returned a
verdict of guilty, on the ground that if the prisoner had
applied to the guardians for relief she would have had it :
Held, that neither count was proved, as it was not enough
that the prisoner could have obtained the food on applica-
tion to the guardians, and that it is doubtful whether the
second count is good in law. — R. v. Rugg, 12 Cox, 16.
It is to be remarked that the indictment in that case
was under the common law, as, in England, the statute
OFFENCES AGAINST THE PERSON. 171
applies only to masters and servants or apprentices. By
the common law, an indictment lies for all misdemeanors
of a public nature. Thus it lies, for a breach of duty,
which is not a mere private injury, but an outrage upon
the moral duties of society ; as for the neglect to provide
sufficient food or other necessaries for an infant of tender
years, unable to provide for and take care of itself, for whom
the defendant is obliged by duty to provide, so as thereby
to injure its health.
But the parent must have a present means or ability
to support the child ; the possibility of obtaining such
relief is not sufficient ; and by the neglect of such duty,
the child must have suffered a serious injury. An oppor-
tunity of applying to a relieving officer of the union, from
which the mother would have received adequate relief on
application, is not a sufficient proof of her having present
means. — R. v. Chandler, Dears. 453 ; R. v. Hogan, 2
Den. 277; R. v. Philpott, Dears. 145. But these and
similar cases, are no authorities under our present statute,
in Canada.
In an indictment under this section, it is not necessary
to allege that the defendant had the means and was able
to provide the food or clothing, nor that his neglect to
do so endangers the life or affects the health of his wife.
— R. v. Smith, 2 L. K 247.
A verdict of assault is legal on an indictment under this
section charging bodily harm. — i2. v. Bissonnett. Ram-
say's App. Cos. 190.
In an indictment under sec. 19, it is not necessary to
allege that by the refusal and neglect of the defendant
to supply the food necessary, etc, to his wife, her life
had been endangered, or her health permanently injured. —
R. v. Scott, 28 L. C. J. 264. Contra.— R. v. Maker,
7 L. N. 82. See R. v. Nasmith, 42 U. C. Q. B. 242.
172 OPFENCES AGAINST THE PERSON.
Held, Armour, J. dissenting, that the evidence of a wife
is inadmissible on the prosecution of her husband for
refusal to support her under 32-33 V., c. 20, s. 25. (See
now, sub. sect. 2, ante.) The Queen v. Bissell, 1 0. R. 514.
20. Every one who unlawfully abandons or exposes any child,
being under the age of two years, whereby the life of such child is
endangered, or the health of such child has been, or is likely to be,
permanently injured, is guilty of a misdemeanor, and liable to three
years' imprisonment.— 32-33 V., c. 20, s. 26. 24-25 V., c. 100, s. 27,
Imp.
Greaves' Note. — This clause is new. It is intended
to provide for cases where children are abandoned or ex-
posed under such circumstances that their lives or health
may be, or be likely to be, endangered. See R. v.
Hogan, 2 Den. 277 ; R. v. Cooper, 1 Den. 459 ; 2 C &
K.876;R.v. Philpot, 1 Dears, 179; R. v. Gray, 1
Dears. & B. 303, which show the necessity for this
enactment.
Indictment. — unlawfully did abandon and
expose a certain child called J. N., then being under the
age of two years, whereby the life of the said child was
endangered (or whereby the health of such child was likely
to be permanently injured) against the form
This provision is new. In order to sustain an indict-
ment under it, it is only necessary to prove that the defen-
dant wilfully abandoned or exposed the child mentioned in
the indictment ; that the child was then under two years
of age, and that its life was thereby endangered, and its
health had been or then was likely to be permanently
injured. — Archbold, 693.
A. and B. were indicted for that they "did abandon
and expose a child then being under the age of two years,
whereby the life of the child was endangered." A., the
mother of a child five weeks old, and B. put the child into
OFFENCES AGAINST THE PERSON. 173
a hamper, wrapped up in a shawl, and packed with shav-
ings and cotton wool, and A., with the connivance of B.,
took the hamper to M., about four or five miles off, to the
booking office of the railway station there. She there paid
for the carriage of the hamper, and told the clerk to be
very careful of it, and to send it to G. by the next train,
which would leave M. in ten minutes from that time. She
said nothing as to the contents of the hamper, which was
addressed " Mr. Carr's, Northoutgate, Gisbro, with care, to
be delivered immediately," at which address the father of
the child (a bastard) was then living. The hamper was
carried by the ordinary passenger train, and delivered at
its address the same evening. The child died three weeks
afterwards, from causes not attributable to the conduct of
the prisoners. On proof of these facts, it was objected for
the prisoners that there was no evidence that the life of
the child was endangered, and that there was no abandon-
ment and no exposure of the child within the meaning of
the statute. The objections were overruled and the pris-
oners found guilty. Held, that the conviction should be
affirmed. — R. v. Fcdkingham, 11 Cox, 475.
A mother of a child under two years of age brought it
and left it outside the father's house (she not living with
her husband, the father of it). He was inside the house,
and she called out "BilL here's your child; I can't keep
it. I am gone." The father some time afterwards came
out, stepped over the child and went away. About an
hour and a half afterwards, his attention was again called
to the child still lying in the road. His answer was, "it
must bide there for what he knew, and then the mother
ought to be taken up for the murder of it." Later on, the
child was found by the police in the road, cold and stiff;
but, by care, it was restored to animation. Held, on a
174 OFFENCES AGAINST THE PERSON.
case reserved, that, though the father had not had the
actual custody and possession of the child, yet, as he was
by law bound to provide for it, his allowing it to remain
where he did was an abandonment and exposure of the
child by him, whereby its life was endangered, within the
statute.— R v. White, 12 Cox, 83.
21. Every one who, unlawfully and maliciously, by the explosion
of gunpowder or other explosive substance, burns, maims, disfigures,
disables or does any grievous bodily harm to any person, is guilty of
felony, and liable to imprisonment for life. — 32-33 V., c. 20, s. 27.
24-25 V., c. 100, s. 28, Imp.
22. Every one who, with intent to burn, maim, disfigure, or disable
any person, or to do some grievous bodily harm to any person, un-
lawfully and maliciously causes any gunpowder or other explosive
substance to explode, or sends or delivers to, or causes to be taken or
received by any person any explosive substance, or any other dan-
gerous or noxious thing, or puts or lays at any place, or casts or
throws at or upon, or otherwise applies to any person, any corrosive
fluid, or any destructive or explosive substance, and whether any
bodily harm is effected or not, is guilty of felony, and liable to im-
prisonment for life— 32-33 K, c. 20. s. 28. 24-25 V., c. 100, s. 29, Imp.
23. Every one who unlawfully and maliciously places or throws
in, into, upon, against or near any building, ship or vessel, any gun-
powder or other explosive substance, with intent to do any bodily
injury to any person, whether or not any explosion takes place, and
whether or not any bodily injury is effected, is guilty of felony, and
liable to fourteen years' imprisonment. — 32-33 V., c. 20, s. 29. 24-25
V. c. 1,00, s. 30, Imp.
The words in italics are not in the Imperial Act.
By Sec. 5 of the Procedure Act, no judge of the sessions
nor recorder can try any offence against the above three
sections.
Indictment for burning by gunpowder — felo-
niously, unlawfully and maliciously, by the explosion of a
certain explosive substance, that is to say, gunpowder, one
J. N. did burn; against the form (Add counts,
varying the statement of the injury, according to circum-
stances.)— Archbold.
OFFENCES AGAINST THE PERSON. 175
Indictment for sending an explosive substance with
intent, etc feloniously, unlawfully and maliciously
did send (or deliver to. or cause to be taken or received
by) to one J. N. a certain explosive substance and dan-
gerous and noxious thing, to wit, two drachms of fulmi-
nating silver, and two pounds weight of gunpowder, with
intent in so doing him the said J. N. thereby then to burn
(maim, disfigure or disable, or do some grievous bodily
harm) against (Add counts varying the injury
and intent.) — Archbold.
Indictment for throwing corrosive fluid, with intent,
etc feloniously, unlawfully and maliciously did
cast and throw upon one J. N. a certain corrosive fluid
to wit, one pint of oil of vitriol, with intent in so doing
him the said J. N. thereby then to burn (Add counts
varying the injury and the intent.) — Archbold.
In R. v. Crawford, 1 Den. 100, the prisoner was
indicted for maliciously throwing upon P. C. certain
destructive matter, to wit, one quart of boiling water, with
intent, etc. The prisoner was the wife of P. C, and when
he was asleep, she, under the influence of jealousy, boiled a
quart of water, and poured it over his face and into one of
his ears, and ran off boasting she had boiled him in his
sleep. The injury was very grievous. The man was for
a time deprived of sight, and had frequently lost for a
time the hearing of one ear. The jury having convicted,
upon a case reserved, the judges held that the conviction
was right.
In R. v. Murrow, 1 Moo. C. C. 456, it was held, where
the defendant threw vitriol in the prosecutor's face, and so
wounded him, that this wounding was not the " wounding "
meant by the 9 Geo. 4, c. 31, s. 12. — Archbold, 665 ; but
it would now fall under this statute. — The question of
intent is for the jury. — JR. v. Saunders, 14 Cox, 180.
176 OFFENCES AGAINST THE PERSON.
Indictment charged defendants with having unlawfully,
knowingly and willingly deposited in a room in a lodging
or boarding house (described) in the city of Halifax, near
to certain streets or thoroughfares and in close proximity
to divers dwelling houses, excessive quantities of a danger-
ous and explosive substance called dynamite, in excessive
and dangerous quantities, by reason whereof the inhabi-
tants, etc., were in great danger.
Held, good, without alleging carelessness, or that the
quantities deposited were so great that care would not pro-
duce safety. — The Queen v. Holmes, et at., 5 R. & G.
(N. &J498. See c. 150, Rev, Stat.
24. Every one who sets or places, or causes to be set or placed,
any spring-gun, man-trap, or other engine calculated to destroy
human life or inflict grievous bodily harm, with the intent that the
same or whereby the same may destroy or inflict grievous bodily
harm, upon any trespasser or other person coming in contact there-
with, is guilty of a misdemeanor, and liable to three years' imprison-
ment;
2. Every one who knowingly and wilfully permits any such spring-
gun, man-trap or other engine which has been 6et or placed by some
other person, in any place which is, or afterwards comes into his pos-
session or occupation, to continue so set or placed shall be deemed to
have set or placed such gun, trap or engine, with such intent aa
aforesaid ;
3. Nothing in this section contained shall extend to make it illegal
to set or place any gin or trap such as is usually set or placed with
the intent of destroying vermin.— 32-33 V., c. 20, s. 30. 24-25 V., c.
100, s. 31, Imp.
The English Act has the following additional proviso :
" Provided also that nothing in this section shall be
deemed to make it unlawful to set or place or cause to be
set or placed, or to be continued set or placed from sunset
to sunrise, any spring-gun, man-trap or other engine
which shall be set or placed, or caused or continued to be
set or placed, in a dwelling-house for the protection
thereof."
OFFENCES AGAINST THE PERSON. 177
Indictment. — unlawfully did set and place, and
caused to be set and placed, in a certain garden situate
a certain spring-gun which was then loaded and
charged with gunpowder and divers leaden shot, with
intent that the said spring-gun, so loaded and charged as
aforesaid, should inflict grievous bodily harm upon any
trespasser who might come in contact therewith, against.
Prove that the defendant placed or continued the
spring-gun loaded in a place where persons might come in
contact with it ; and if any injury was in reality occasioned,
state it in the indictment, and prove it as laid. The intent
can only be inferred from circumstances, as the position of
the gun, the declarations of the defendant, and so forth ;
any injury actually done will, of course, be some evidence
of the intent. — Archbold.
A dog-spear set for the purpose of preserving the game
is not within the statute, if not set with the intention to
do grievous bodily harm to human beings. — 1 Russ. 1052.
The instrument must be calculated to destroy life or
cause grievous bodily harm, and proved to be such ; and,
if the prosecutor, while searching for a fowl among some
bushes in the defendant's garden, came in contact with a
wire which caused a loud explosion, whereby he was
knocked down, and slightly injured about the face, it was
held that the case was not within the statute, as it was
not proved what was the nature of the engine or substance
which caused the explosion, and it was not enough that
the instrument was one calculated to create alarm. —
1 Russ. 1053.
25. Every one who, with intent to injure or to endanger the safety
of any person travelling or being upon any railway, unlawfully and
maliciously puts or throws upon or across such railway, any wood,
N
178 OFFENCES AGAINST THE PERSON.
etone, or other matter or thing, or unlawfully and maliciously takes
up, removes or displaces any rail, railway switch, sleepers, or other
matter or thing belonging to such railway, or injures or destroys any
track, bridge or fence of such railway, or any portion thereof, or
unlawfully and maliciously turns, moves or diverts any point or other
machinery belonging to such railway, or unlawfully and maliciously
makes or shows, hides or removes any signal or light upon or near to
such railway, or unlawfully and maliciously does or causes to be
done any other matter or thing, with such intent, is guilty of felony,
and liable to imprisonment for life.— 32-33 V., c. 20, s. 31. 42 V., c.
9, s- 88, part, and s. 89. 44 V., c. 25, ss. 116, part, and 117. 24-25
V., c 100, s. 32, Imp.
26. Every one who unlawfully and maliciously throws, or causes
to fall or strike at, against, into or upon any engine, tender, carriage
or truck used upon any railway, any wood, stone or other matter or
thing, with intent to injure or endanger the safety of any person beinc
in or upon such engine, tender, carriage or truck, or in or upon any
other engine, tender, carriage or truck of any train, of which such
first mentioned engine, tender, carriage or truck forms part, is guilty
of felony, and liable to imprisonment for life. — 32-33 V.y c. 20, s. 32.
24-25 V., c. 100, s. 33, Imp.
27. Every one who, by any unlawful act, or by any wilful omission
or neglect of duty, endangers or causes to be endangered the safety of
any person conveyed or being in or upon a railway, or aids or assists
therein, is guilty of a misdemeanor, and liable to imprisonment for
any term less than two years.— 32-33 V., c 20, *. 33. 24-25 V., c. 100,
s. 34, Imp.
The words " of duty " in this last section are not in
the English Act.
Indictment for endangering by wilful neglect the
safety of railway passengers that J. S. on
unlawfully did, by a certain wilful omission and neglect
of his duty, that is to say, by then wilfully omitting and
neglecting to turn certain points in and upon a certain
railway called in the parish which points it
was then the duty of him, the said J. S., to turn, endanger
the safety of certain persons then conveyed and being in
and upon the said railway, against the form
OFFENCES AGAINST THE PERSON. 170
(Add counte varying the statement of defendants duty,
etc. ) — A rchbold.
An acquittal of the felony under sec. 25 is no bar to an
indictment for the misdemeanor of sec 27. — R. v. Gilmore,
15 Cox, 85.
See post, remarks under sec. 37, c. 168. The forms of
indictments there given may form a guide for indictments
under the present section.
Prove that it was the duty of the defendant to turn the
points ; that he wilfully omitted and neglected to do so ;
and that, by reason of such omission and neglect, the safety
of the passengers or other persons conveyed or beirg on the
railway was endangered (which words will include not only
passengers but officers and servants of the railway com-
pany).— Archbold.
In R. v. Holroyd, 2 31. and Rob. 339, it appeared
that large quantities of earth and rubbish were found
placed across the railway, and the prosecutor's case was
that this had been done by the defendant wilfully and in
order to obstruct the use of the railway ; and the defen-
dant's case was that the earth and rubbish had been
accidentally dropped on the railway : Maule, J., told the
jury, that if the rubbish had been dropped on the rails by
mere accident, the defendant was not guilty ; but " it was
by no means necessary, in order to bring the case within
this Act, that the defendant should have thrown the rub-
bish on the rails expressly with the view to upset the train
of carriages. If the defendant designedly placed these
substances, having a tendency to produce an obstruction, not
caring whether they actually impeded the carriages or not,
that was a case within the Act." And on one of the jury
asking what was the meaning of the term u wilfully " used
in the statute, the learned judge added "he should con-
180 OFFENCES AGAINST THE PERSON.
sider the act to have been wilfully done, if the defendant
intentionally placed the rubbish on the line, knowing that
it was a substance likely to produce an obstruction ; if, for
instance, he had done so in order to throw upon the com-
pany's officers the necessary trouble of removing the rub-
bish." This decision may afford a safe guide to the meaning
of the term wilful in this clause. Greaves, Cons. Acts, 62,
on s. 34. (27 of our statute). — In the other clauses, the
word wilfully is now replaced by unlawfully,
Ons. 33 (26 of our statute.) — Greaves says; fCons.
Acts, 61.) " The introduction of the word at extends this
clause to cases where the missile fails to strike any engine
or carriage. Other words were introduced to meet cases
where a person throws into or upon one carriage of a train,
when he intended to injure a person being in another car-
riage of the same train, and similar cases. In R. v. Court,
6 Cox, 202, the prisoner was indicted for throwing a stone
against a tender with intent to endanger the safety of per-
sons on the tender, and it appeared that the stone fell on
the tender, but there was no person on it at the time, and
it was held that the section was limited to something
thrown upon an engine or carriage having some person
therein, and consequently that no offence within the
statute was proved ; but now, this case would clearly come
within this clause."
. In R. v. Bradford, Bell, C. C, 268, it was held that a
railway not yet opened for passengers, but used only for
the carriage of materials and workmen, is a railway within
the statute.
In R. v. Bowray, 10 Jur. 211, 1 Russ. 1058, on an
indictment for throwing a stone on a railway, so as to
endanger the safety of passengers, it was held that the
intention to injure is not necessary, if the act was done
OFFENCES AGAINST THE PERSON. 181
wilfully, and its effect be to endanger the safety of the
persons on the railway.
It is not necessary that the defendant should have
entertained any feeling of malice against the railway com-
pany, or against any person on the train ; it is quite
enough to support an indictment under the statute, if the
act was done mischievously, and with a view to cause an
obstruction of a train. — R. v. Upton, 5 Cox, 298.
Two boys went upon premises of a railway company,
and began playing with a heavy cart, which was near the
line. Having started the cart, it ran down an embankment
by its own impetus. One boy tried to divert its course ;
the other cried to him " Let it go." The cart ran on with-
out pushing until it passed through a hedge, and a fence
of posts and rails, and over a ditch on to the railway ; it
rested so close to the railway lines as to obstruct any car-
riages passing upon them. The boys did not attempt to
remove it : Held, that as the first act of moving the cart
was a trespass, and therefore an unlawful act, and as the
jury found that the natural consequence of it was that the
cart ran through the hedge and so on to the railway, the
boys might be properly convicted. R. v. Monaghan, 11
Cox, 608.
Iudictment under sec. 26 Berkshire (to wit).
The Jurors for our Lady the Queen upon their oath present
that on the first day of May, in the year of our Lord 1852
at the parish of Goring, in the county of Berks, A. B.
feloniously, unlawfully, and maliciously did cast (cast,
throw, or cause to fall or strike against, into or upon)
upon a certain carriage (engine, tender, carriage, or
truck), then and there used upon a certain railway there,
called " The Great Western Railway" a certain large
piece of wood (any wood, stone, or other matter or
182 OFFENCES AGAINST THE PERSON.
thing) with intent thereby then and there to endanger
the safety of one C. D., then and there being in (in or
upon) the said carriage (engine, tender, carriage or truck)
again ;t the form of the statute in such case made and pro-
vided.
US. Every one who, having the charge of any carriage or vehicle,
by wanton or furious driving, or racing or other wilful misconduct, or
by wilful neglect, does or causes to be done any bodily harm to any
person whomsoever, is guilty of a misdemeanor, and liable to impris-
onment for any term less than two years. — 32-33 V., c. 20, s. 34. 24-
25 V,c. 100, s. 35, Imp.
Indictment. — being then a coachman, and then
having charge of a certain carriage and vehicle called an
omnibus, unlawfully did, by the wanton and furious driv-
ing of the said carriage and vehicle by him the said
(defendant) cause certain bodily harm to be done to one
J. N. against the form — Archbold, 677.
This section includes all carriages and vehicles of every
description, both public and private. Wilful means volun-
tary.— Greaves, Cons. Acts, 63.
29. Every one who cuts or makes, or causes to be cut or made for
the purpose of harvesting or obtaining ice for sale or use, any hole,
opening, aperture or place, of sufficient size or area to endanger
human life, through the ice on any navigable or other water open to
or frequented by the public, and leaves such hole, opening, aperture
or place, while it is in a state dangerous to human life, whether the
same is frozen over or not, unguarded and uninclosed by a guard or
fence of sufficient height and strength to prevent any person from
accidentally riding, driving, walking, skating or falling therein, is
guilty of a misdemeanor, and liable to be punished by fine or impris-
onment, on summary conviction, before any justice of the peace or
district magistrate, having jurisdiction in any city, judicial district or
county within which, or on the borders of which, such navigable or
other water is wholly or partly situate. — 49 V., c. 53, s. 1.
30. Every one who is the owner, manager or superintendent of
any abandoned or unused mine or quarry or property upon or in
OFFENCES AGAINST THE PERSON. 183
which any excavation in search of mines or quarries has been or is
hereafter made of a sufficient area and depth to endanger human life,
and who leaves the same unguarded and uninclosed by a guard or
fence of sufficient height and strength to prevent any person from
accidentally riding, driving, walking or falling therein, is guilty of a
misdemeanor, and liable to be punished by fine or imprisonment or
both, on summary conviction before any justice of the peace having
jurisdiction in the locality in which the said mine or quarry is situate.
—49 V., c. 53, s. 2.
31. If within five days after conviction for any offence referred to
in either of the two sections next preceding, a suitable guard or fence
is not constructed around or over the said exposed opening, to con-
form to the provisions of the said sections, the person liable for such
omission may be again complained of and convicted for the said
offence, and the plea of a former conviction therefor shall not avail to
him as a relief from the said complaint and conviction. — 49 V., c. 53,
a. 3.
32. If any person loses his life by accidentally riding, driving,
walking, skating or falling into any such hole, opening, aperture or
place unguarded as is mentioned in either of the three sections next
preceding, the person or persons whose duty it was to guard such
hole, opening, aperture or place, in manner aforesaid, is guilty of
manslaughter. — 19 V., c. 53, s. 4.
33. Every one who, by any unlawful act, or by doing negligently
or omitting to do any act which it is his duty to do, causes grievous
bodily injury to any other person, is guilty of a misdemeanor, and
liable to imprisonment for any term less than two years, — 32-33 V., c.
20, s. 35.
This clause is not in the English Act. It is in the same
terms as s. 27, ante, except that this last one applies only
to passengers by railway endangered by the unlawful act
or neglect, or omission of duty.
An injury resulting from an omission does not subject
the peTson causing it to punishment, unless such omission
be unlawful. An omission is deemed unlawful whenso-
ever it is a breach of some duty imposed by law, or gives
cause to a civil action. — 2nd Report Cr. L. Com. 14 May,
1846.
184 OFFENCES AGAINST THE PERSON,
Mr. Starkie, one of the English Commissioners, in a
separate report, objected strongly to such an enactment,
and the framers of the Imperial Statutes have thought
proper to leave it out.
ASSAULTS.
34. Every one who assaults any person with intent to commit any
indictable offence,— or assaults, resists or wilfully obstructs any revenue
or peace officer, or any officer seizing trees, logs, timber or other pro-
ducts thereof, in the due execution of his duty, or any person acting
in aid of such officer, — or assaults any person with intent to resist or
prevent the lawful apprehension or detainer of himself, or of any
other person for any offence, — or assaults, resists or wilfully obstructs
any person in the lawful execution of any process against any lands
or goods, or in making any lawful distress or seizure, or with intent
to rescue any goods taken under such process, distress or seizure, is
guilty of a misdemeanor, and liable to imprisonment for any term less
than two years —32-33 V., c. 20, s. 39. 43 V., c. 28, s. 65, part. 46
V., c. 16, s. 6, part, and c. 17, s. 66, part. 24-25 V., c. 100, *• 38, Imp,
35. Every one who commits any assault which occasions actual
bodily harm, is guilty of a misdemeanor, and liable to three year's
imprisonment,— 32-33 V., c 20, s. 47, part. 24-25 V-, c. 100, s. 47,
Imp.
36. Every one who commits a common assault is guilty of a
misdemeanor, and liable, if convicted upon an indictment, to one years'
imprisonment, and, on summary conviction, to a fine not exceeding
twenty dollars and costs, or to two months' imprisonment, with or
without hard labor. — 32-33 V., c 20, as- 43, part, and 47, part. 24-
25 V., c. 100, s. 42-47, Imp.
As to costs as an additional punishment. See 248 of
the Procedure Act.
On an indictment for assault and battery occasioning
actual bodily harm, the defendant is not a competent
witness on his own behalf under s. 216 of the Procedure
Act.— R. v. Richardson, 46 U. C. Q. B. 375.
Indictment for assaulting a peace officer in the execu-
tion of his duty, in and upon one J. N., then being
OFFENCES AGAINST THE PERSON. 185
a peace officer, to wit, a constable (any peace officer in
the execution of his duty, or any revenue officer in the
execution of his duty, or any person acting in aid of)
and then being in the due execution of his duty as such
constable, did make an assault, and him, the said J. N., so
being in the execution of his duty as aforesaid, did then
beat, wound and illtreat, and other wrongs to the said J.
N., then did, to the great damage of the said J. N., against
the form (Add a count for a common assault.)
— Archbold.
Prove that J. N. was a peace or revenue officer, as stated
in the indictment, by showing that he had acted as such.
It is a maxim of law, that " omnia proesumuntur rite
et solenniter esse acta donee probetur in contrarium"
upon which ground it will be persumed, even in a case of
murder, that a man who has acted in a public capacity or
situation was duly appointed. — R. v. Verelet, 3 Camp.
432 ; R. v. Gordon, 1 Leach, 515 ; R. v. Murphy, 8 C. &
P. 297 ; R. v. Newton, 1 C. <t K. 469 ; Taylor, on Evi-
dence, per. 139, 431. Prove that J. N. was in the due
execution of his duty, and the assault. If you fail in pro-
ving that J. N. was a peace officer, or that he was acting
lawfully as such, the defendant may be convicted of a
common assault.
The fact that the defendant did not know that the person
assaulted was a peace officer, or that he was acting in the
execution of his duty, is no defence. — E. v. Forbes, 10
Cox, 362.
Revenue officers are not included in the corresponding
clause of the English Act, assaults on them being, there,
otherwise provided for. — Greaves, Cons. Acts, 65.
Indictment. — in and upon one J. N. unlaw-
fully did make an assault, and him the said J. N. did beat,
186 OFFENCES AGAINST THE PERSON.
wound and ill-treat with intent him the said J. N". feloni-
ously, wilfully and of his malice aforethought to kill and
murder, and other wrongs to the said J. N. then did, to
the great damage of the said J. N., against the form
(Add a count for a common assault:) — Archbold.
Every attempt to commit a felony against the person of
an individual without his consent involves an assault.
Prove an attempt to commit such a felony, and prove it
to have been done under such circumstances, that had the
attempt succeeded, the defendant might have been convic-
ted of the felony. If you fail proving the intent, but
prove the assault, the defendant may be convicted of the
common assault. — Archbold.
Indictment for an assault to prevent arrest in
and upon one J. N. did make an assault, and him, the
said J. N., did then beat, wound and ill-treat with intent
in so doing to resist and prevent (resist or prevent) the
lawful apprehension of (himself or of any other
person) for a certain offeree, that is to say (state the
offence generally) against the (Count for common
assault). — Archbold, 685,
It must be stated and proved that the apprehension
was lawful. See R. v. Davis, L. <fc C. 64. If this and
the intent be not proved, a verdict of common assault
may be given. But it must be remembered that resist-
ance to an illegal arrest is justifiable, — and if, in a case,
where a warrant is necessary, the officer making an arrest,
has not the warrant with him, the party whom he tries to
arrest, resists and assaults him, he cannot be convicted of
an assault on an officer in the due execution of his office.
— Codd v. Gabe, 13 Cox, 202.
0 A common assault may be prosecuted either by indict-
ment or under the Summary Convictions Act : 1 Burn-,
319.— 1 Buss. 1035.
OFFENCES AGAINST THE PERSON. 187
If the charge is before the magistrate on a legal
complaint, and the evidence goes to prove an offence
committed which he has no jurisdiction to hear and
determine, as if, on a complaint of an assault, the evidence
go to show that a rape or assault with intent to commit a
felony has been committed, he may, if he disbelieves the
evidence as to the rape or intent, convict as to the residue
of it of an assault. — Wilkinson v. Dutton, 3 B, & S.
821 ; Anon, 1 B. & Ad. 382.
In this last case Lord Tenterden held that the magis-
trate had found that the assault was not accompanied by
any attempt to commit felony, and that, quoad, hoc, his
decision was final.
In R. v. Walker, 2 M. & Rob. 446, Coltman, J., gave
the same interpretation to the clause.
In R. v. Elrington, 1 B. <fc S. 688, it was held that
the magistrate's certificate of dismissal is a bar to an
indictment for an unlawful assault occasioning actual
bodily harm, arising out of the same circumstances. —
See Wemyss v. Hopkins, L. R. 10 Q. B. 378.
In R. v. Stanton, 5 Cox, 324, Erie, J., said that in his
opinion, a summary conviction before justices of the
peace (in England, the law requires two) is a bar to an
indictment for a felonious assault, arising out of the same
facts.
But a summary conviction for assault is no bar to a
subsequent indictment for manslaughter, upon the death
of the man assaulted, consequent upon the same assault.
— R. v. Morris, 10 Cox, 480 ; R. v. Basset, Greaves,
Cons. Acts, 72.
Where an assault charged in an indictment and that
referred to in a certificate of dismissal by a magistrate
appear to have been on the same day, it is primd facie
188 OFFENCES AGAINST THE PERSON.
evidence that they are one and the same assault, and it is
incumbent on the prosecutor to show that there was a
second assault on the same day if he alleges that such is
the case. The defendant having appeared before the
magistrate, the recital in the certificate of the fact of a
complaint having been made and of a summons having
been issued is sufficient evidence of those facts. — R. v.
Westley, 11 Cox, 139.
When a question of title to lands arises before him,
the magistrate's jurisdiction is at an end, and he cannot
inquire into or adjudicate upon an excess of force or vio-
lence which may be used in the assertion of a title to
lands. — R. v. Pearson, 11 Cox, 493.
A person making a bona fide claim of right to be present
as one of the public in a law court at the hearing of a suit
is not justified in committing an assault upon a police
constable and an official who endeavor to remove him,
Such a claim of right does not oust the jurisdiction of the
magistrate who has to try the charge of assault, and he
may refuse to allow cross-examination and to admit
evidence in respect of such a claim. — R. v. Eardley, 49
J. P. 551.
Indictment for an assault occasioning actual bodily
harm. — that J. S., on in and upon one
J. N. did make an assault, and him the said J. N. did
then beat, wound and ill-treat, thereby then occasioning to
the said J. N. actual bodily harm, and other wrongs to the
said J. 1ST. then did, to the great damage of the said J. N.
against the form — Archbold.
Indictment for a common assault. — that C.
D., on the , at in and upon one A. B. an
assault did make, and him the said A. B. then and there
did beat, wound and ill-treat, and then and there to him
other wrongs and injuries did, against the form
OFFENCES AGAINST THE PERSON. 189
The defendant may be convicted of a common assault
upon an indictment for occasioning actual bodily harm. —
B. v. Oliver, Bell, C. C. 287 ; B. v. Yeadon, L. <fc C. 281.
The intent to do bodily harm, or premeditation, is not
necessary to convict upon an indictment under this
section ; thus a man who commits an assault the result
of which is to produce bodily harm is liable to be con-
victed under this section, though the jury find that the
bodily harm formed no part of the prisoner's intention,
and was done without premeditation, under the influence
of passion. — B. v. Sparrow, Bell, C. C. 298.
An assault is an attempt or offer, with force and vio-
lence, to do a corporal hurt to another, whether from ma-
lice or wantonness ; as by striking at him with or without
a weapon, though the party striking misses his aim ; so
drawing a sword, throwing a bottle or glass, with intent
to wound or strike, presenting a loaded gun or pistol at a
person within the distance to which the gun or pistol
will carry, or pointing a pitchfork at a person standing
within reach ; holding up one's fist at him, in a threaten-
ing or insulting manner, or with such other circumstances
as denote at the time an intention, coupled with a present
ability, of using actual violence against his person, will
amount to an assault. — 1 Burn, 308.
It had been said that the presenting a gun or pistol at
a person within the distance to which it will carry, though
in fact not loaded, was an assault, but later authorities
have held that if it be not loaded it would be no assault
to present it and pull the trigger. — 1 Burn, loc. cit.
One charged with an assault and battery may be found
guilty of the assault, and yet acquitted of the battery ; but
every battery includes an assault ; therefore on an indict-
ment for assault and battery, in which the assault is ill-
190 OFFENCES AGAINST THE PERSON.
laid, if the defendant be found guilty of the battery it is
sufficient. — 1 Hawkins, 110.
Mere words will not amount to an assault, though per-
haps they may in some cases serve to explain a doubtful
action. — 1 Burn, 309.
If a man strike at another, but at such a distance that
he cannot by possibility touch him, it is no assault. But if
A. advances in a threatening attitude with his fists clench-
ed towards B., with an intention of striking him, so that
his blow would have almost immediately reached B., if he
had not been stopped by a third person, this would be an
assault in point of law, though at the particular moment
when A. was stopped, he was not near enough for his blow
to take effect. — Stephen v. Meyers, 4 G. & P. 349.
To collect a number of workmen round a person who
tuck up their sleeves and aprons and threaten to break his
neck, if he did not go out of the place, through fear of
whom he did go out, amounts to an assault. There is the
intention and present ability and a threat of violence
causing fear. — Read v. Coker, 13 G. B. 850.
So riding after a person and obliging him to run away
into a garden to avoid being beaten is an assault. — Martin
v. Shoppee, 3 C. & P. 373.
Any man wantonly doing an act of which the direct
consequence is that another person is injured commits an
assault at common law, though a third body is interposed
between the person doing the act and the person injured.
Thus to drive a carriage against another carriage in which
a person is sitting, or to throw over a chair on which a
person is sitting, whereby the person in the carriage or on
the chair, as the case may be, is injured, is an assault. So
by encouraging a dog to bite, or by wantonly riding over
a person with a horse, is an assault. — 1 Burn, 309 ; 1
Muss. 1021.
OFFENCES AGAINST THE PERSON. 191
Where an act is done with the consent of the party it is
not an assault ; for iu order to support a charge of assault,
such an assault must be proved as could not be justified if
an action were brought for it, and leave and licence pleaded;
attempting therefore to have connection with a girl be-
tween the ages of ten and twelve, or under ten years of age,
if done with the girl's con sent, is not an assault. — R. v.
Connolly, 26 U. C. Q. B. 317. If the girl is between ten
and twelve, the indictment in such a case should be for an
attempt to commit a misdemeanor : if the girl is under ten,
the indictment should be for an attempt to commit a
felony.— 1 Russ. 933, 1023; R. v. Mart%n, 9 C. & P.
213 ; R. v. Meredith, 8 C. & P. 589 j R. v. CocWmm
3 Cox, 543 ; R. v. Mehegan, 7 Cox, 145 ; R. v. Read, 1
Den. 377 ; R v. Johnston, 10 Cox, 114 ; L. & C. 132 ; R.
v. Ryland, 11 Cox, 101 ; R. v. Guthrie, 11 Cox, 523.
By sec. 183 of the Procedure Act, the defendant may be
convicted of the attempt to commit the offence charged upon
any indictment for any felony or misdemeanor, if the
evidence warrants it, and the fact that the girl consented
is immaterial, upon an indictment for an attempt to commit
the felony or the misdemeanor. — R. v. Beale, 10 Cox 157.
In R. v. Wollaston, 12 Cox, 182, Kelly, C. B., said:
" If anything is done by one being upon the person of
another, to make the act an assault, it must be done with-
out the consent and against the will of the person upon
whom it is done. Mere submission is not consent, for there
may be submission without consent, and while the feelings
are repugnant to the act being done. Mere submission is
totally different from consent. But in the present case,
there was actual participation by both parties in the act
done, and complete mutuality : " and the defendant was
acquitted as the boys, aged above fourteen, upon whom he
192 OFFENCES AGAINST THE PERSON.
was accused of having indulged in indecent practices, had
been willing and assenting parties to what was done.
But if resistance be prevented by fraud, it is an assault.
If a man, therefore, have connection with a married
woman, under pretence of being her husband, he is guilty
of an assault.— R. v. Williams, 8 C. & P. 286; R. v.
Saunders, 8 C. & P. 265.
In R. v. Mayers, 12 Cox, 311, it was held that if a
man has or attempts to have connection with a woman
while she is asleep, it is no defence that she did not resist,
as she is then incapable of resisting.
In R. v. Lock, 12 Cox, 244, upon a case reserved, it
was held, that the definition of an assault that the act must
be against the will of the patient, implies the possession of
an active will on his part, and, therefore, the mere submis-
sion by a child of tender years (eight years old) to an in-
decent assault, without any active sign of dissent, the
child being ignorant of the nature of the assault, does not
amount to consent so as to take the offence out of the
operation of criminal law.
In R. v. Woodhurst, 12 Cox, 443, on an indictment
for carnal knowledge of a girl above ten years of age and
under twelve, and also for an assault, it was held on the
latter count that although consent would be a defence,
consent extorted by terror or induced by the influence of a
person in whose power the girl feels herself, is not really
such consent as will have that effect ; following R. v. Day,
9C.&P. 722 ; R. v. Nicholl, R. & R. 130 ; R. v. Rosinski,
1 Moo. C. C. 19 ; R. v. Case, 1 Den. 580.
An unlawful imprisonment is also an assault ; for it is
a wrong done to the person of a man, for which, besides
the private satisfaction given to the individual by action,
the law also demands public vengeance, as it is a breach
OFFENCES AGAINST THE PERSON. 193
of the King's Peace, a loss which the State sustains by the
confinement of one of its members, and an infringement of
the good order of society. 4 Blackstone, 518. It ha3
been supposed that every imprisonment includes a battery,
but this doctrine was denied in a recent case, where it
was said by the Court that it was absurd to contend that
every imprisonment included a battery. — 1 Buss. 1025.
A battery in the legal acceptation of the word includes o
beating and wounding. Archbold, 659. Battery seemeth
to be, when any injury whatsoever, be it ever so small, is
actually done to the person of a man in an angry or
revengeful, or rude, or insolent manner, as by spitting in
his face, or throwing water on him, or violently jostling
him out of the way. — 1 Hawkins, c. 15, sec. 2. For the
law cannot draw the line between different degrees of vio-
lence, and therefore totally prohibits the first and lowest
stages of it, every man's person being sacred, and no other
having a right to meddle with it in any the slightest man-
ner.—1 Russ. 1021.
The touch or hurt must be with a hostile intention, and,
therefore, a touch given by a constable's staff, for the pur-
pose of engaging a person's attention only, is not a battery.
—1 Burn, 312.
Whether the act shall amount to an assault must in
every case be collected from the intention ; and if the injury
committed were accidental and undesigned, it will not
amount to a battery. — 1 Buss. 1025.
Striking a horse, whereon a person is riding and whereby
he is thrown, is a battery on him, and the rider is justified
in striking a person who wrongfully seizes the reins of his
horse, and in using all the violence necessary to make
him loose his hold. A w-ounding is where the violence
is such that the flesh is opened ; a mere scratch may con-
stitute a wounding. — 1 Burn, loc. cit.
0
194 OFFENCES AGAINST THE PERSON.
The actual bodily harm mentioned in this section would
include any hurt or injury calculated to interfere with the
health or comfort of the prosecutors ; it need not be an
injury of a permanent character, nor need it amount to
what would be considered to be grievous bodily harm. —
Archbold, 660.
Even a mayhem is justifiable if committed in a party's
own defence. But a person struck has merely a right to
defend himself, and strike a blow in his defence, but he
has no right to revenge himself; and if, when all the
danger is past, he strikes a blow not necessary, he commits
an assault and battery. And in no case should the battery
be more than necessary for self defence. — 1 Burn, 312.
The mere offer of a person to strike another is sufficient
to justify the latter's striking him : he need not stay till
the other has actually struck him.
A husband may justify a battery in defence of his wife,
a wife in defence of her husband, a parent in defence of his
child, a child in defence of his parent, a master in defence
of his servant and a servant in defence of his master ; but
in all these cases the battery must be such only as was
necessary to the defence of the party or his relation, for it
were excessive, if it were greater than was necessary for
mere defence ; the prior offence will be no justification. So
a person may lay hands upon another to prevent him from
fighting, or committing a breach of the peace, using no
unnecessary violence. If a man without authority attempt
to arrest another illegally, it is a breach of the peace, and
any other person may lawfully interfere to prevent it,
doing no more than is necessary for that purpose.
Churchwardens and private persons are justified in
gently laying their hands on those who disturb the
performance of any part of divine service, and turning
them out of church. — 1 Burn, 314.
I
OFFENCES AGAINST THE PERSON. 195
A parent may in a reasonable manner chastise his child
or a master his servant, or a schoolmaster his scholar, or a
gaoler his prisoner, and a captain of a ship any of the crew
who have mutinously or violently misconducted them-
selves.— 1 Burn loc. cit.
So might a military officer order a moderate correction
for disobedience of orders. — 1 Burn, loc. cit.
A party may justify a battery by showing that he com- o
mitted it in defence of his possession, as, for instance, to
remove the prosecutor out of his close or house, — or to
remove a servant, who, at night, is so misconducting
himself as to disturb the peace of the household, — or
to remove a person out of a public house, if the party be
misconducting himself, or to prevent him from entering
the defendant's close or house, — to restrain him from
taking or destroying his goods, — from taking or rescuing
cattle, etc., in his custody upon a distress, — or to retake
personal property improperly detained or taken away, —
or the like.
In the case of a trespass in law merely without actual
force, the owner of the close, or house, etc., must first
request the trespasser to depart, before he can justify,
laying his hands on him for the purpose of removing him ;
and even if he refuse, he can only justify so much force as
is necessary to remove him. But if the trespasser use force,
then the owner may oppose force to force ; and in* such
a case, if he be assaulted or beaten, he may justify even a
wounding or mayhem in self-defence, as above mentioned.
In answer to a justification in defence of his possession, it
may be shown that the battery was excessive, or that the
party assaulted, or some one by whose authority he acted,
had a right of way or other easement over the close, or
the like.— 1 Burn, 313 ; Archbold, 661. On this part of
196 OFFENCES AGAINST THE PERSON.
the subject, 1 Russ. 1028, has the following remarks : " It
should be observed with respect to an assault by a man on
a party endeavoring to dispossess him of his land, that
where the injury is a mere breach of a close, in contempla-
tion of law, the defendant cannot justify a battery without
a request to depart ; but it is otherwise where any actual
violence is committed, as it is lawful in such a case to
oppose force by force ; therefore, if a person break, down the
gate, or come into a close vi et armis, the owner need not
request him to be gone, but may lay hands on him imme-
diately ; for it is but returning violence with violence. If a
person enters another's house with force and violence, the
owner of the house may justify turning him out, using no
more force than is necessary, without a previous request
to depart ; but if the person enters quietly, the other party
cannot justify turning him out without previous request."
It appears to have been formerly holden that a person
could not be prosecuted upon one indictment for assault-
ing two persons, each assault being a distinct offence ; but
a subsequent decision has established the contrary. — 1
Buss. 1030.
If a man, who suffers from gonorrhoea, has connection
with a woman, ignorant of his disease, and communicates
it to her, this is an assault occasioning actual bodily harm.
— R. v, Sinclair, 13 Cox, 28 ; Contra Hegarty v. Shine,
14 Cox, 124, 145.
There is a manifest distinction between endeavoring to
turn a person out of a house, into which he has previously
entered quietly, and resisting a forcible attempt to enter ; in
the first case a request to depart is necessary but not in
the latter.
In a criminal prosecution by the wife of O., for assault
made upon her in entering her husband's house, the defence
OFFENCES AGAINST THE PERSON. 197
was that she had no right to enter, and that her intention was
to take away property which she had no legal right to take,
but held, on a case reserved, that this would not justify the
assault, there being no previous request made of her to
leave the house, nor any statement of her intention, or of
an attempt to take anything. — The Queen v. O'Xeill, 3
P. & B. (X. B.) 49.
An indictment declaring that the prisoner did " beat,
wound and ill- treat" A. was held to be substantially an
indictment for a common assault. — The Queen v. Shannon,
23 X. B. Rep. 1.
RAPE.
37. Every one who commits the crime of rape is guilty of felony,
and liable to suffer death a# a felon, or to imprisonment for life,
or for any term not iess than seven years. — 36 V., c. 50, s. 1, part.
24-25 V.,'c. 100, s. 48, Imp.
38. Every one who assaults any woman or girl with intent to
commit rape is guilty of a misdemeanor, and liable to imprisonment
for any term not exceeding seven years and not less than two years. —
36 V., c.50,s. I, part.
This last section is not in the Imperial Act.
Sect. 226 of the Procedure Act enacts what constitutes
a sufficient proof of carnal knowledge.
Eape is not triable at quarter sessions. — Sec. 4 Proce-
dure Act, See Appendix ; note on Eape by Greaves.
Indictment. — That A. B., on iuthe year
in and upon one C. D. in the peace of God and
Our Lady the Queen, then and there being, violently and
feloniously did make an assault, and her, the said C. D„
violently and against her will feloniously did ravish and
carnally know ; against the form of the statute in such
case made and provided, and against the peace of Our
Lady the Queen, her crown and dignity. — Archbold.
198 OFFENCES AGAINST THE PERSON.
Averment of woman's age unnecessary. — 2 Bishop, Cr.
Proc. 954.
Eape has been defined to be the having unlawful and
carnal knowledge of a woman, by force, and against her
will.— 1 Russ. 904.
To constitute the offence there must be a penetration,
or res in re, in order to constitute the " carnal know-
ledge" which is a necessary part of this offence. But a
very slight penetration is sufficient, though not attended
with the deprivation of the marks of virginity. — 1 Russ.
912.
A boy under fourteen years of age is presumed by law
incapable to commit a rape, and therefore he cannot be
guilty of it, nor of an assault with intent to commit
it ; and no evidence is admissible to show that, in point
of fact, he could commit the offence of rape. But on an
indictment for rape he may be found guilty of a common
assault. — R. v. Brimilow, 2 Moo. C. C. 122. A husband
cannot be guilty of a rape upon his wife. The offence
of rape may be committed, though the woman at last
yielded to the violence, if such her consent was forced by
fear of death or by duress.
It will not be any excuse that the woman was first
taken with her own consent if she were afterwards forced
against her will; nor will it be an excuse that she
consented after the fact, or that she was a common strum-
pet, or the concubine of the ravisher. Circumstances of
this kind, however, though they do not necessarily pre-
vent the offence from amounting to a rape, yet are mate-
rial to be left to the jury, in favor of the party accused,
especially in doubtful cases. The notion that if the
woman conceived it could not be a rape, because she
must, in such case, have consented, appears to be quite
exploded. — 1 Russ. 905.
OFFENCES AGAINST THE PERSON. 199
Having carnal knowledge of a woman by a fraud which
induces her to suppose it is her husband does not amount
to a rape.— J?, v. Williams, 8 C. & P. 286 ; R. v.
Clarke, Dear. 397 ; 1 Russ. 908; R. v. Barrow, 11 Cox,
191 ; R. v. Francis, 13 U. C. Q. B. 116 ; Contra. R. v.
Dee, 15 Cox, 579. But it is an assault. See cases, ante,
under sec. 36. In England, now, by 48-49 V., c. 69, it
is rape.
A woman, with her baby in her arms, was lying in
bed between sleeping and waking, and her husband was
asleep beside her. She was completely awakened by a
man having connection with her, and pushing the baby
aside. Almost directly she was completely awakened,
she found the man was not her husband, and awoke
her husband. The Court of Criminal Appeal held that
a conviction for a rape upon this evidence could not
be sustained. — R. v. Bamow, 11 Cox, 191.
See, aho,R. v.J ackson, R. <fc R. 487 ; and contra R.
v. Young, 14 Cox, 114.
Upon the trial of an indictment for rape upon an idiot
girl, the proper direction to the jury is that if they are
satisfied that the girl was in such a state of idiocy as to
be incapable of expressing either consent or dissent, and
that the prisoner had connection with her without her
consent, it is their duty to find him guilty. — R. v.
Bam-att, 12 Cox, 498. In R. v. Fletcher, 10 Cox, 248,
the law was so given, but the evidence of non-consent
was declared insufficient.
If a woman is incapable of resisting, it is no defence
that she did not resist. — R. v. Fletcher, 8 Cox, 131 ; Bell,
C. C. 63 ; R. v. Camplin, 1 Den. 89 ; R. v. Flattery, 1 3
Cox, 388. If a man has or attempts to have connection
200 OFFENCES AGAINST THE PERSON.
with a woman while she is asleep, it is no defence that
she did not resist, as she is then incapable of resisting.
The man can therefore be found guilty of a rape, or of
an attempt to commit a rape. — R. v. Mayers, 12 Cox, 311.
It is clear that the party ravished is a competent wit-
ness. But the credibility of her testimony must be left
to the jury, upon the circumstances of fact which concur
with that testimony. Thus if she be of good fame ; if
she presently discovered the offence, and made search for
the offender ; if she showed circumstances and signs of
the injury, whereof many are of that nature that women
only are proper examiners ; if the place where the act
was done were remote from inhabitants or passengers ; if
the party accused fled for it ; these, and the like, are
concurring circumstances, which give greater probability
to her evidence. But if, on the other hand, the witness be
of evil fame, and stand unsupported by others ; if without
being under the control or the influence of fear, she
concealed the injury for any considerable time after she
had the opportunity of complaining ; if the place where
the fact is alleged to have been committed was near to
persons by whom she might probably have been heard,
and yet she made no outcry ; if she has given wrong
descriptions of the place ; these, and the like circumstances,
affoid a strong though not conclusive presumption that
her testimony is feigned. — 1 Russ. 692.
The character of the prosecutrix, as to general chastity,
may be impeached by general evidence, as by showing
her general light character, etc., but evidence of connec-
tion with other persons than the prisoner cannot be
received.
In R. v. Hodgson, R. & R. 211, the woman in the
witness box was asked: Whether she had not before
OFFENCES AGAINST THE PERSON. 201
had connection with other persons, and whether she had
not before had connection with a particular person
(named). The Court ruled that she was not obliged to
answer the question. In the same case, the prisoner's
couusel offered a witness to prove that the woman had
been caught in bed about a year before this charge with a
young man. The Court ruled that this evidence could
not be received. These rulings were subsequently main-
tained by all the j udges.
Although you may cross-examine the prosecutrix as to
particular acts of connection with other men (and she
need not answer the question, unless she likes), you can-
not, if she deny it, call witnesses to contradict her. — R.
v. Cockcroft, 11 Cox, 410 ; R. v. LaliberU, 1 & C. R. 117.
But she may be cross-examined as to particular acts
of connection with the prisoner, and if she denies them,
witnesses may be called to contradict her. — i2. v. Martin,
6 C. <fc P. 562 ■ R. v. Riley, 16 Cox, 191.
On the trial of an indictment for an indecent assault,
the defence being consent on the part of the prosecutrix,
she denied on cross-examination having had intercourse
with a third person, S. Held, that S. could not be
examined to contradict her upon this answer. This rule
applies to cases of rape, attempt to commit a rape, and
indecent assault in the nature of attempts to commit a
rape. — R. v. Holmes, 12 Cox, 137.
This decision is by the Court of Criminal Appeal,
composed of five judges, confirming R. v. Hodgson, and
R. v. Cockcroft. The case of R. v. Robins, 2 M. and
Rob. 512 is now overruled. — Taylor, Evidence, par. 336.
It is true, rape is a most detestable crime, and there-
fore ought severely and impartially to be punished with
death, but it must be remembered that it is an accusation
202 OFFENCES AGAINST THE PERSON.
easily to be made and hard to be proved, and harder
to be defended by the party accused, though never so
innocent. — 1 Hale, 634.
Upon an indictment under section 37, the jury may
find the prisoner guilty of an attempt to commit a rape.
— R. v. Hapgood, 11 Cox, 471 ; or may find a verdict of
common assault.
Under section 38, for an assault with intent to commit
rape (misdemeanor), the indictment may be as follows :
in and upon one A. B., a woman (or girl), unlaw-
fully did make an assault, with intent, her, the said A. B.,
violentty and against her will, feloniously, to ravish and
carnally know, against the form (Add a count for
a common assault). — Archbold.
If upon trial for this misdemeanor, the felony under
section 37 be proved, the defendant is not therefore
entitled to an acquittal. — Sec. 184 Procedure Act.
On an indictment for an assault with intent to commit
a rape, Pateson, J., held that the evidence of the prisoner
having, on a prior occasion, taken liberties with the
prosecutrix, was not receivable to show the prisoner's
intent ; also, that in order to convict of assault with
intent to commit rape, the jury must be satisfied, not
only that the prisoner intended to gratify his passion on
the person of the prosecutrix, but that he intended to do
so at all events, and notwithstanding any resistance on
her part.— R. v. Loyd, 7 C. & P. 318.
When a man is charged with rape, all that the woman
said to other persons in his absence shortly after the
alleged offence is admissible in evidence. — R. v. Wood,
14 Cox, 47. See R. v. Little, 15 Cox, 319.
In R. v. Gisson, 2 C. & K. 781, it was held that an
OFFENCES AGAINST THE PERSON. 203
acquittal on an indictment for a rape could not be success-
fully pleaded to a subsequent indictment for an assault
with intent to commit a rape, because a verdict for the
attempt to commit the offence could not be received on an
indictment changing the offence itself. But that case
was before 14-15 V., c. 156, s. 9, Imp. (Sec. 183 ProcecL
Act), which gives the right to convict of an attempt upon
an indictment charging the offence. And the case of R.
v. Dungey, 4 F. & F. 99, is a clear authority, that upon a
trial for rape the defendant may be found guilty of an
attempt to commit it. In fact there can now be no doubt
upon this ; sect. 183 of the Procedure Act is clear. See
cases cited under that section.
An assault with intent to commit a raps, is very different
from an assault with intent to have an improper con-
nection. The former is with intent to have a connection by
force and against the will of the woman. — R. v. Stanton,
1 C. & K. 415 ; R. v. Wright, 4 F. & F. 967 ; R. v.
Rutland, 4 F. & F. 495 ; R. v. Dungey, 4 F. & F. 99.
An indictment for an attempt to commit rape is always
in the form of an assault with intent to commit rape, as in
R, v. Riley, 16 Cox, 191, for instance, and in.R. v. Dungey,
ubi supra, the judge charged the jury that they could,
on an indictment for rape, find the prisoner guilty of an
assault with intent to commit rape.
Sec. 38, ante, does not create the offence of attempt to
commit a rape ; that is and has always been a misde-
meanor at common law. But this section merely provides
for the punishment of the offence, and makes it greater
than it would be either at common law or by sec. 34 of
the same Act. The same as to sec. 37. It does not create
the crime of rape, but merely provides for its punishment,
204 OFFENCES AGAINST THE PERSON.
and as in cases of murder, larceny, sodomy, etc., the offence
remains what it is at common law.
In a case of R. v. John, in British Columbia, November,
1887, upon a writ of error, the Supreme Court were divided
on the question whether, upon an indictment for rape, the
prisoner in that case had been lawfully convicted of an
assault with intent to commit rape. An appeal has since
been taken to the federal Supreme Court and is now
pending.
In R, v. Wright, 4 F. & F., 967, the prisoner was
indicted for rape and for assault with intent to commit
rape. It is now allowed, to join a felony with a misde-
meanor in all cases where by statute, a verdict for the
misdemeanor may be received on an indictment for the
felony, though altogether unnecessary.
In a case of rape, the counsel for the prosecution should
not tell the jury that to acquit the prisoner is to find the
woman guilty of perjury. — R. v. Rudland, and R. v.
Puddicic, 4F. & F. 495, 497.
39. Every one who unlawfully and carnally knows and abuses
any girl under the age of ten years is guilty of felony, and liable to
imprisonment for life or for any term not less than five years. — 40 V.,
c. 28, s. 2. 48-49 V., c. 69, s. 4, Imp.
Indictment — in and upon one A. N., a girl
under the age often years, to wit, of the age of Dine years,
feloniously did make an assault, and her, the said
A. N., then and there feloniously did unlawfully and
carnally know and abuse, against the form —
Archbold, 708.
The evidence is the same as in rape, with the exception
that the consent or non-consent of the girl is immaterial.
—Archbold, 709.
OFFENCES AGAINST THE PERSON. 205
Upon the trial of an indictment under this clause, the
jury may, under sect. 191 of the Procedure Act, find the
defendant guilty of a common assault, in certain cases.
But no such verdict can be returned, if the girl assented.
— R. v. Read, 1 Den. 377 ; R. v. Connolly, 26 IT. C. Q.
B. 317 ; R. v. Roadley, 14 Cox, 463.
Under sect. 183 of the Procedure Act, the defendant
may be convicted of an attempt to commit the offence
charged, if the evidence warrants it. A boy under four-
teen years of age cannot be convicted of this offence, nor
of the attempt to commit it. — 1 Russ. 931.
40. Every one who unlawfully and carnally knows and abuses
any girl above the age often years and under the age of twelve vears
is guilty of a misdemeanor, and liable to seven years' imprisonment.
— 32-33 V-, c 20, s. 52. This oftence is now in England a felony. — 48-49
V., c. 69, s. 4, Imp.
Indictment. — in and upon one A. X., a girl
above the age of ten years and under the age of twelve
years, to wit, of the age of eleven years, unlawfully did
make an assault, and her the said A. N. did then unlaw-
fully and carnally know and abuse, against the form
—Archbold, 709.
Same evidence as in rape ; but it will be no defence that
the girl consented.
Kemarks under preceding section are applicable here.
An indictment charged that G. in and upon D., a girl
above the age of ten, and under the age of twelve, unlawfully
did make an assault, and her, the said D., did then unlaw-
fully and carnally know and abuse. Held, by the Court
of Criminal Appeal, that the indictment contained two
charges, one of common assault, and the other of the statu-
table misdemeanor (under this section), and that the pris-
oner might be convicted of a common assault upon it, as
206 OFFENCES AGAINST THE PERSON.
no consent on the part of the girl had been proved. — R.
v. Guthrie, 11 Cox, 522 ; R. v. Catherall, 13 Cox, 109.
On an indictment for carnal knowledge of a girl above
ten years of age and under twelve, and also for an assault :
Held, Lush, J., on the count for assault, that although
consent would be a defence, consent extorted by terror, or
induced by the influence of a person in whose power she
feels herself, is not really such consent as will have that
effect. — R. v. Woodhurst, 12 Cox, 443 ; R. y. Lock, 12 Cox,
244.
Upon an indictment for unlawfully assaulting and hav-
ing carnal knowledge of a girl between ten and twelve
years of age, the prisoner may be convicted of the attempt
to commit that offence. — R. v. Ryland, 11 Cox, 101 ;
R.v. Catherall, 13 Cox, 109.
The punishment would then be under next section. — R.
v. Meredith, 8 C. & P. 589 ; R. v. Webster, 9 L. C. R., 196.
If the girl has consented, there can be no verdict of
assault. — R, v. Johnston, L. & C. 632 ; 1 Russ. 934; R. v.
Cockburn, 3 Cox, 543; R. v. Martin, 2 Moo. C. C. 123 ;
R. v. Wollaston, 12 Cox, 180.
But there is a difference between consent and submis-
sion.— 1 Russ. 934; R. v. Lock, 12 Cox, 244.
If upon an indictment for having a carnal knowledge of
a girl between ten and twelve years of age, it appear that
in fact the girl was under ten, the indictment cannot be
amended to make it agree quoad hoc with the proof, and
the prisoner must be acquitted. — R. v. Shott, 3 C. & K.
206.
An indictment for the felony of rape still lies against
one who ravishes a female between the age of ten and
twelve. — R. v. Dicken, 14 Cox, 8; R. v. Radcliffe, 15
Cox, 127.
OFFENCES AGAINST THE PERSON. 207
41. Every one who commit* any indecent assault upon any female,
or attempts to have carnal knowledge of any girl under twelve years
of age, is guilty of a misdemeanor and liable to imprisonment for any
term less than two years, and to be whipped. — 32-33 F., c. 20, s. 53.
24-25 V., c. 100, s. 52; and 48-49 Y., c. 69, s. i, Imp.
Indictment. — one A. D. unlawfully and inde-
cently did assault, and her, the said A. D., did then beat,
wound and ill treat, and other wrongs to the said A. D. did,
to the great damage of the said A. D., against the form.
— Archbold.
Sec. 140 of the Procedure Act applies to indictments
for indecent assaults.
Consent is immaterial upon an indictments for the
attempt to have carnal knowledge of a girl under twelve,
but upon an indictment for indecent assault, if the
girl, although under twelve, consented, the prisoner
must be acquitted, as there can be no assault on a person
consenting. — B. v. Holmes, 12 Cox, 137. B. v. Paquet,
9 Q. L. B. 361. See B. v. Boadley, 14 Cox, 463. See
now as to England, 43-44 V., c. 45, Imp.
Upon the trial of the prisoner, a school teacher, for an
indecent assault upon one of his scholars, it appeared that
he forbade the prosecutrix telling her parents what had
happened, and they did not hear of it for two months.
After the prosecutrix had given evidence of the assault
evidence was tendered of the conduct of the prisoner to
wards her subsequent to the assault.
Held, that the evidence was admissible as tending to
show the indecent quality of the assault, and as being, in
effect, a part or continuation of the same transaction as
that with which the prisoner was charged. — jR. v. Chute,
46 U. C. Q. B. 555.
On an indictment for attempting to have connection
with a girl under ten, consent is immaterial ; but in such a
208 OFFENCES AGAINST THE PERSON.
case there can be no conviction for assault if there was
consent.— i2. v. Connolly, 26 U. C. Q. B. 317.
42. P^very one who, —
(a.) From motives of lucre, takes away or detains against her will,
with intent to marry or carnally know her, or to cause her to be
married or carnally known by any other person, any woman of any
age, who has any interest, whether legal or equitable, present or future,
absolute, conditional or contingent in any real or personal estate, or
who is a presumptive heiress or co-heiress or presumptive next of
kin, or one of the presumptive next of kin to any one having such
interest, or —
(b.) Fraudulently allures, takes away or detains such woman, being
under the age of twenty-one years, out of the possession and against
the will of her father or mother, or of any other person having the
lawful care or charge of her, with intent to marry or carnally know
her, or to cause her to be married or carnally known by any other
person, —
Is guilty of felony, and liable to fourteen years' imprisonment.
2. Every one convicted of any offence under this section shall be
incapable of taking any estate or interest, legal or equitable, in any
real or personal property of such woman, or in which she has any
interest, or which comes to her as such heiress, co-heiress or next of
kin ; and if any such marriage takes place, such property shall, upon
such conviction, be settled in such manner as any court of competent
jurisdiction, upon any information, at the instance of the Attorney
General for the Province in which the property is situate, appoints. —
32-33 F, c. 20, s. 54. 24-25 V., c. 100, s. 53, Imp.
On the trial of an indictment for an offence under sub-
sec, b. of this section, it is not necessary to prove that the
accused knew that the girl he abducted had an interest in
any property. — R. v. Kaylor, 1 Q. B. R. 364.
It is not necessary that an actual marriage or defilement
should take place. Under the first part of this section, the
taking or detaining must be from motives of lucre and
against the will of the woman, coupled with an intent to
marry or carnally know her or cause her to be married or
carnally known by another person.
Indictment under first part of this section. —
OFFENCES AGAINST THE PERSON. 209
feloniously and from motives of lucre did take away and
detain (" take away or detain") one A. N. against her will,
she, the said A. N., then having a certain present and abso-
lute interest in certain real estate (any interest, whether
legal or equitable, present or future, absolute, conditional
or contingent in any real or personal estate) with intent
her, the said A. N., to marry (or carnally know her, or
cause her to be married or carnally known by )
against the form (Add a count stating generally
the nature of some part of the property, and if the intent
be doubtful, add counts varying the intent.) Archbold,
699. The value of the property should be stated. See
another form, in Chitty, C. L. 3rd V., 818.
Indictment under second part of this section. —
feloniously and fraudulently allured (took away or
detained) one A. B. out of the possession and against the
will of C. D., her father, she, the said A. B., then being
under the age of twenty-one years, and having a certain
present interest in with intent, her, the said A. B.,
to marry (or carnally know, or cause to be married or,
etc., etc., etc.,) contrary to the statute, etc. (Add counts, if
necessary, varying the statement as to the property, pos-
session, or intents.)
Under the second part of the section, the offence consists
in the fraudulent allurement of a woman under twenty-
one out of the possession of or against the will of her
parent or guardian, coupled with an intent to marry or
carnally know her, or cause her to be married or carnally
known by another person, but, for this offence, no motives
of lucre are mentioned, nor should it have been committed
against the will of the woman, though she must be an
heiress, or such a woman as described in the first lines of
this section.
P
210 OFFENCES AGAINST THE PERSON.
The taking under the first part of this section must be
against the will of the woman ; but it would seem that,
although it be with her will, yet, if that be obtained by
fraud practised upon her, the case will be within the Act ;
for she cannot whilst under the influence of fraud be con-
sidered to be a free agent.
If the woman be taken away in the first instance with
her own consent, but afterwards refuse to continue with
the offender, the offence is complete, because if she so
refuse, she may from that time as properly be said to be
taken against her will as if she had never given her consent
at all, for, till the force was put upon her, she was in her
own power. — 1 Burn, 8.
Moreover the detaining against her will is by itself
an offence.
It seems, also, it is not material whether a woman so
taken contrary to her will at last consents thereto or not,
for if she were in force at the time, the offence is complete
at the time of the taking, and the offender is not to escape
from the provisions of the statute by having prevailed
over the weakness of the woman by such means.
The second part of this section expressly contemplates
the case of a girl, under twenty-one, whose co-operation
has been obtained by influence over her mind, and who
has been taken out of the possession of her parent or guar-
dian by means of a fraud practised upon them and against
their will, or by force, against their will, but with her
consent. If a girl, under twenty-one, is taken away or
detained against her own will, or her consent is obtained
through fear, that case would be within the first part of
this section. The woman, though married, may be a wit-
ness against the offender. — Archbold, 700.
"If, therefore," says Taylor, on Evidence, No. 1236, "a
OFFENCES AGAINST THE PERSON. 211
" man be indicted for the forcible abduction of a woman
" with intent to marry her, she is clearly a competent
■ witness against him, if the force were continuing against
" her till the marriage. Of this last fact also she is a com-
"petent witness, and the better opinion seems to be that
"she is still competent, notwithstanding her subsequent
" assent to the marriage and her voluntary co-habitation :
"for otherwise, the offender would take advantage of his
" own wrong."
Under sec. 183 of the Procedure Act, the prisoner
charged with the felony aforesaid may be found guilty of an
attempt to commit the same, which is a misdemeanor at
common law, Roscoe, 283, and punishable by fine, or im-
prisonment, or both. The Court may also, in misdemeanors
require the defendant to find sureties to keep the peace and
be of good behaviour, at common law, and may order him
to be imprisoned until such security is found — R. v.
Dunn, 12 Q. B. 1026. — Greaves' Cons. Acts, 7. See sects.
24 and 31, c. 181, post.
Under sec. 191 of the Procedure Act, the prisoner may
be acquitted of the felony, and found guilty of an assault,
if the evidence warrants such finding.
43. Every one who, by force, takes away or detains against her
will any woman, of any age, with intent to marry or carnally know
her, or to cause her to be married or carnally known by any other
person, is guilty of felony, and liable to tourteen years' imprisonment.
—32-33 V., c. 20, s. 55. 24-25 V., c. 100, s. 54, Imp.
The observations upon the last section will apply for the
most part to this, which provides a very proper protection
to women who happen to have neither any present nor
future interest in any property. — Greaves' Cons. Acts, 80.
It may be that manual force may not in all cases be
necessary, and, that though no actual force was used, yet,
212 OFFENCES AGAINST THE PERSON.
if the taking away was accomplished under the fear and
apprehension of a present immediate threatened injury,
depriving the woman of freedom of action, the statute
would be satisfied. — 1 Burn, 9.
Indictment. — feloniously and by force did take
away (or detain) one A. B. against her will, with intent
her, the said A. B., to marry (or ) against
the form of the statute (If the intent is doubtful,
add a count stating it to be to " carnally know," or to
cause her to be married to one JV. S., or to some persons
to the jurors unknown, or to cause her to be carnally
known by, etc.) — 1 Burn, 12.
A verdict for assault or for an attempt to commit the
offence charged, may be given, as under the next pre-
ceding section.
ABDUCTION OF GIRLS UNDER SIXTEEN.
44. Every one who unlawfully takes or causes to be taken any
unmarried girl, being under the age of sixteen years, out of the pos
session and against the will of her father or mother, or of any other
person having the lawful care or charge of her, is guilty of a mis-
demeanor, and liable to imprisonment for any term less than two
years.— 32-33 V., c. 20, s. 56. 24-25 V., c. 100, s. 55, and 48-49 V., c.
69, s. 7, Imp.
The intent to marry, or carnally know is not an ingre-
dient of this offence. The only intent which is material is
the intent to deprive the parent or legal guardian of the
possession of the child. — Roscoe, 248. JSo motives of
lucre are necessary. A woman may be guilty of this
offence.
It is immaterial whether the girl consents or not, and
the taking need not be by force, actual or constructive.
— R. v. Mankletow, 1 Buss. 954; Dears, 159. Where
a parent countenances the loose conduct of the girl,
OFFENCES AGAINST THE PERSON. 213
the jury may infer that the taking is not against the
parent's will. Ignorance of the girl's age is no defence. —
1 Russ. 952; R. v. Robins, 1 C. & K. 456. It is
not necessary that the taking away should be for a per-
manency ; it is sufficient if for the temporary keeping of
the girl.— R. v. Timmins, Bell, C. C. 276.
On an indictment for' abducting a girl under sixteen
years of age, it appeared that the girl, when abducted, had
left her guardian's house for a particular purpose with his
sanction : Held, that she had not ceased to be in his pos-
session under the statute. — R. v. Mondelet, 21 L. C. J.
154.
On a trial for taking an unmarried girl under the age of
sixteen out of the possession of her guardian :
Held, 1st. That evidence of her being badly treated by her
guardian is inadmissible. 2nd. That secondary evidence
of the age of the child is admissible. 3rd. That in this
case the defendant is not guilty of taking the child out of
the possession of the guardian. — R. v. Hollis, 8 L. N
299.
To pick up a girl in the streets and take her away is not
to take her out of the possession of any one. The prisoner
met a girl under sixteen years of age in a street, and
induced her to go with him to a place at some distance,
where he seduced her and detained her for some hours. He
then took her back to where he met her, and she returned
home to her father. In the absence of any evidence that
the prisoner knew, or had reason for knowing, or that he be-
lieved that the girl was under the care of her father at the
time, held by the Court of Criminal Appeal that a convic-
tion under this section could not be sustained. — R. v.
Green, 3 F. 6 F. 274; R. v. Hibbert, 11 Cox 246.
One who takes an unmarried girl under the age of sixteen
214 OFFENCES AGAINST THE PERSON.
years out of the possession and against the will of her
father or mother is guilty of this offence, although he may
not have had any bad motive in taking her away, nor
means of ascertaining her age, and although she was
willing to go. — R. v. Booth, 12 Cox, 231; R. v. Kipps,
4 Cox, 167 ; R. v. Prince, 13 Cox, 138.
The defence in Booth's case was that the prisoner,
actuated by religious and philanthropic motives, had taken
the girl from her parents in order to save her from seclu-
sion in a convent. He was found guilty and sentenced.
A girl who is away from her home is still in the custody
or possession of her father, if she intends to return ; it is
not necessary to prove that the prisoner knew the girl to be
under sixteen ; the fact of the girl being a consenting party
cannot absolve the prisoner from the charge of abduction ;
this section is for the protection of parents. — R. v. Mycock,
12 Cox, 28 ; R. v. Olifier, 10 Cox, 402 ; R. v. Miller, 13
Cox, 179.
Indictment. — unlawfully did take (or cause to
be taken) one A. B. out of the possession and against the
will of E. F., her father, she, the said A. B., being then an
unmarried girl, and under the age of sixteen years, to wit,
of the age of against the form, etc. (if necessary
add a count stating E. F. to be a person having the law-
fid care and charge of the said A. B.. or that the defen-
dant unlawfully did cause to be taken one ) —
Archbold. See R. v. Johnson, 15 Cox, 481.
It is no defence to an indictment under this section that
the prisoner believed the girl to be eighteen. — See R. v.
Prince, 13 Cox, 138.
It was held in R. v. Bishop, 5 Q. B. D. 259, that under
a statute which prohibits the receiving of lunatics for
treatment in a house not duly licensed, the owner of a house
OFFENCES AGAINST THE PERSON. 215
who had received lunatics was guilty of the offence created
by the statute, though the jury found that he believed
honestly and on reasonable grounds that the persons re-
ceived were not lunatics.
" I do not think that the maxim as to the mens rea has
so wide an application as it is sometimes considered to have.
In old times, and as applicable to the common law or to
earlier statutes, the maxim may have been of general
application ; but a difference has arisen owing to the greater
precision of modern statutes. It is impossible now to apply
the maxim generally to all statutes, and it is necessary to
look at the object of each act to see whether and how far
knowledge is of the essence of the offence created." — Per
Stephen, J. Cundy v. Lecocq, 13 Q. B. D. 207.
CHILD STEALING.
4o. Every one who, —
(a) Unlawfully, either by force or fraud, leads or takes away or
decoys or entices away, or detains any child under the age of fourteen
years, with intent to deprive any parent, guardian or other person
having the lawful care or charge of such child of the possession of
such child, or with intent to steal any article upon or about the person
of such child, to whomsoever such article belongs, or —
(b) With any 6uch intent receives or harbors any such child,
knowing the same to have been, by force or fraud, led, taken, decoyed,
enticed away or detained, as in this section before mentioned, —
Is guilty of felony, and liable to seven years' imprisonment;
2. No person who has claimed any right to the possession of such
child, or is the mother, or has claimed to be the father of an ille-
gitimate child, shall be liable to be prosecuted by virtue hereof on
account of the getting possession of such child, or taking such child
out of the possession of any person having the lawful charge thereof.
—32-33 Y., c. 20, s. 57. 24-25 V., c. 100, *. 56, Imp.
See R. v. Johnson, 15 Cox, 481 ; and R. v. Barrett, 15
Cox, 658.
216 OFFENCES AGAINST THE PERSON.
Indictment — feloniously and unlawfully did
by force (or fraud) lead and take away (lead or take away,
or decoy, or entice away, or detain) one A. N., a child
then under the age of fourteen years, to wit, of the age of
seven years, with intent thereby then to deprive one A. S.,
the father of the said A. N., of the possession of the said
A. N., his said child, against And the jurors
that the said afterwards, to wit, on the day and
year aforesaid, feloniously and unlawfully did by force
(or fraud) lead and take away (or etc..) the said A. N.,
a child then under the age of fourteen years, to wit, of the
age of seven years, with intent thereby then feloniously to
steal, take and carry away divers articles, that is to say
then beiDg upon and about the person of the said
child, against (Add counts stating that the defen-
dant did by fraud entice away, or did by fraud detain)
or did by force detain, if necessary/ — Archbold.
Upon the trial of any offence contained in this section,
the defendant may, under sec. 183 of the Procedure Act,
be convicted of an attempt to commit the same. — 1 Buss.
966.
All those claiming a right to the possession of the child
are specially exempted from the operation of this section,
by the proviso.
KIDNAPPING.
46. Every one who, without lawful authority ,"forcibly seizes and
confines or imprisons any other person within Canada, or kidnaps
any other person with intent, —
(a.) To cause such other person to be secretly confined or impris-
oned in Canada against his will, —
(&.) To cause such other person to be unlawfully sent or transported
out of Canada against his will, or —
(c) To cause such other person to be sold or captured as a slave,
or in any way held to service against his will, —
Is guilty of felony, and liable to seven years' imprisonment;
OFFENCES AGAINST THE PERSON. 217
2. Upon the trial of any offence under this section, the non-resistance
of the person eo kidnapped or unlawfully confined thereto shall not
be a defence, unless it appears that it was not caused by threats,
duress or force or exhibition offeree. — 32-33 V., c. 20, ss- 69 and 70-
At common law, kidnapping is a misdemeanor punish-
able by fine and imprisonment. — 1 Muss. 962.
The above sections are taken from the 29 V., c. 14.
(1865).
The forcible stealing away of a man, woman or child
from their own country, and sending them into another,
was capital by the Jewish and also by the civil law. This
is unquestionably a very heinous crime, as it robs the
sovereign of his subjects, banishes a man from his country,
and may, in its consequences, be productive of the most
cruel and disagreeable hardships. — 4 Blackstone, 219.
By our statute, transportation to a foreign country is
not necessarily an ingredient in this offence. — See sec. 19
of Procedure Act, post, as to venue in such cases.
Under sec. 183 of the Procedure Act, the defendant
may be found guilty of an attempt to kidnap, upon an
indictment for kidnapping.
A verdict of assault may also be given, if the evidence
warrants it. — Sec. 191 Procedure Act.
Indictment. — with force and arms unlawfully
and feloniously an assault did make on one A. B„ and did
then and there, without lawful authority, feloniously and
forcibly seize and imprison the said A. B. within the
Dominion of Canada (or confine or kidnap) with intent
the said A. B. unlawfully, forcibly and feloniously to
cause to be unlawfully transported out of Canada, against
his will ...against the form — 2 Bishop, Or,
L. 750 ; 2 Bishop, Cr. Proc. 690.
Held, on the trial of an indictment for kidnapping
218 OFFENCES AGAINST THE PERSON.
under 32-33 V., c, 20, s. 69, that the intent required
applies to the seizure and confinement as well as to the
kidnapping, and the indictment should state such intent.
Held, also, that an amendment changing the name Eufus
Bratton to James Rufus Bratton was properly made. —
Cornwall v. The Queen, 33 U. C. Q. B. 106.
ABORTION.
47. Every woman, being with child, who, with the intent to pro-
cure her own miscarriage, unlawfully administers, or permits to be
administered, to herself any poison or other noxious thing, or unlaw-
fully uses, or permits to be used on herself, any instrument or other
means whatsoever witb the like intent, and —
Every one who, with intent to procure the miscarriage of any
woman, whether she is or is not with child, unlawfully administers
to her or causes to be taken by her any poison or other noxious thing,
or unlawfully uses any instrument or other means whatsoever with
the like intent, —
Is guilty of felony, and liable to imprisonment for life. — 32-33 V.t c.
20, s. 59. 24-25 V., c 100, *. 58, Imp.
Greaves' Note. — This clause is framed on the 1 V., c.
85, s. 6.
The first part of it is new, and extends the former enact-
ment to any woman, who, being with child, attempts to
procure her own miscarriage.
The second part in terms makes it immaterial whether
the woman were or were not with child, in accordance with
the decision in R. v .Goodhall, 1 Den. 187
Indictment for woman administering poison to her-
self, with intent or, etc that CD. late of
on at and being then with child, with intent
to procure her own miscarriage, did unlawfully and felon-
iously administer to herself one drachm of a certain poison
(or noxious thing) called (or did unlaw fully and
feloniously use a certain instrument or means) to wit,
contrary to the statute — 1 Burn, 1 6.
OFFENCES AGAINST THE PERSON. 219
Indictment for administering poison to a woman,
with intent to procure abortion. — that C. D. on
unlawfully and feloniously did administer to (or
cause to be taken by) one S. P. one ounce weight of a cer-
tain poison, called (or noxious thing called )
with intent then and thereby to cause the miscarriage of
the said S. P. contrary to the statute lBurn, 16.
Indictment for using instrument with the like intent.
— unlawfully and feloniously did use a certain ins-
trument called a upon the person of one S. P., with
intent then and thereby to cause the miscarriage of the
said S. P —I Burn, 16.
In order to constitute an offence under the first part of
section 47, the woman must be with child, though not
necessarily quick with child. The poison or other noxious
thing must have been administered, or the instrument used,
with the intent to procure the miscarriage. It must be
proved, according to the fact stated in the indictment, that
the woman administered to herself, etc., or that the defen-
dant administered, etc., or caused to be taken, etc., the
drug, as therein stated, and that the drug was noxious, or
that the defendant used the instrument, or other means,
mentioned in the manner described in the indictment. — 1
Burn, 14.
Where the prisoner gave the prosecutrix the drug for the
purpose of procuring abortion, and the prosecutrix takes it
for that purpose in the prisoner's absence, this was held to
be a causing of it to be taken within the statute. — B. v.
Wilson, Dears &B. 127 ; B. v. Farrow, Dears <fc B. 164.
A man and woman were jointly indicted for feloniously
administering to C. a noxious thing to the jurors unknown
with intent to procure miscarriage. C. being in the family
way, went to the male prisoner, who said he would give
220 OFFENCES AGAINST THE PERSON.
her some stuff to put her right, and gave her a light color-
ed medicine, and told her to take two spoonfuls till she
became in pain. She did so and it made her ill. She then
went to him again, and he said the safest course would be
to get her a place to go to. He told her that he had found
a place for her at L. and gave her some more of the stuff*
which he said would take effect when she got there. They
went together to L. and met the female prisoner, who said
she had been down to the station several times the day be-
fore to meet them. C. then began to feel pain and told the
female prisoner. Then the male prisoner told what he had
given C. They all went home to the female prisoner's, and
the male prisoner then gave C. another bottle of similar
stuff, in the female prisoner's presence, and told her to
take it like the other. She did so and became very ill, and
the next day had a miscarriage, the female prisoner attend-
ing her and providing all things : Held, that there was evi-
dence that the stuff administered was a noxious thing within
the 24-25 V., c. 100, s. 58, Imp. Also that there was
evidence of the female being an accessory before the fact*
and a party, therefore, to the administration of the noxious
thing.— J?, v. Hollis, 12 Cox, 463.
Under the second part of this section, the fact of the
woman being pregnant is immaterial. R. v. Goodall, 1 Den,
187. But the prisoner must have believed her to be preg-
nant, otherwise there could be no intent under the statute.
Under an indictment for this offence the prisoner may be
convicted of an attempt to commit it. Sec. 183 Procedure
Act. — See R. v. Cramp, 14 Cox, 390 and 401.
48. Every one who unlawfully supplies or procures any poison or
other noxious thing, or any instrument or thing whatsoever, knowing
that the same is intended to be unlawfully used or employed with
intent to procure the miscarriage of any woman, whether she is or is
not with child, is guilty of a misdemeanor, and liable to two years'
imprisonment.— 32-33 V., c 20, s. 60. 24-25 F-, c. 100, s. 59, Imp.
OFFENCES AGAINST THE PERSON. 221
Indictment unlawfully did procure (supply or
procure) a large quantity, to wit, two ounces of a certain
noxious thing called savin, he the said (defendant) then
well knowing that the same was then intended to be
unlawfully used and employed with intent to procure
the miscarriage of one A.N. against the form —
Archbold.
The drug supplied must be a poison or noxious thing,
and the supplying an innoxious drug, whatever may be the
intent of the person supplying it, is not an offence against
this enactment. — ft v. Isaacs, L. <£ C. 220.
In order to constitute the offence within the meaning of
this section, it is not necessary that the intention of employ-
ing the noxious drug should exist in the mind of the
woman : it is sufficient, if the intention to procure abortion
exists in the mind of the defendant. — ft v. Hillman,
L. <£ C. 343.
The prisoner may be convicted of an attempt to commit
this offence, upon an indictment under this section. Sect.
183 of the Procedure Act.
Supplying a noxious thing with the intent to procure
abortion is an offence under this section, whether the
woman is pregnaut or not. — R. v. Titley, 14 Cox, 502.
Giving oil of savin to procure abortion is indictable
under 32-33 V., c. 20, s. 60.— ft v. Stitt, 30 IT. C. C. P. 30.
CONCEALING THE BIRTH OF A CHILD.
49. Every one who, by any secret disposition of the dead body of
any child of which any woman is delivered, whether such child died
before, at or after its birth, endeavors to conceal the birth thereof, is
guilty of a misdearueanor, and liable to imprisonment for any term
less than two years-— 32-33 F-, c. 20, s. 61, part. 24-25 F., c. 100
8. 60, Imp.
See Greaves' note under sec. 188 of the Procedure Act.
222 OFFENCES AGAINST THE PERSON.
Indictment. — that" A. S. on was deli-
vered of a child ; and that the A. S., being so delivered of
the said child as aforesaid, did then unlawfully endeavor
to conceal the birth of the said child by secretly burying
(by any secret disposition of) the dead body of the said
child, against the form, etc., (State the means of
concealment specially, when it is otherwise than by secret
burying.) — Archbold.
In R. v. Berriman, 6 Cox, 388, Erie, J., told the
jury that this offence cannot be committed unless the
child had arrived at that stage of maturity at the time
of birth that it might have been a living child. But in
a later case, R. v. Colmer, 9 Cox, 506, Martin, J., ruled
that the offence is complete on a fcetus delivered in the
fourth or fifth month of pregnancy, not longer than a man's
finger, but having the shape of a child.
Final disposing of the body is not material, and hiding
it in a place from which a further removal was contem-
plated, would support the indictment. — R. v. Goldthorpe,
2 Moo. C. C. 244 : R. v. Perry, Dears. 471.
Leaving the dead body of a child in two boxes, closed
but not locked or fastened, one being placed inside the
other in a bedroom, but in such a position as to attract
the attention of those who daily resorted to the room, is
not a secret disposition of the body, within the meaning
of the statute. — R. v. George, 11 Cox, 41.
What is a secret disposition of the dead body of a
child within the statute is a question for the jury, de-
pending on the circumstances of the particular case :
where the dead body of a child was thrown into a field,
over a wall 4£ feet high, separating the yard of a public
house from the field, and a person looking over the wall
from the yard might have seen the body, but persons
going through the yard or using it in the ordinary way
OFFENCES AGAINST THE PERSON. 223
would no , it was held, on a case reserved, that this was
an offence within the statute.— R. v. Brown, 11 Cox,
517.
Athough the fact of the prisoner having placed the
dead body of her newly -born child in an unlocked box
is not of itself sufficient evidence of a criminal conceal-
ment of birth, yet all the attendant circumstances of the
case must be taken into consideration, in order to deter-
mine whether or not an offence has been committed. —
R. v. Cook, 11 Cox, 542.
In order to convict a woman of attempting to conceal
the birth of her child, see sec. 188 of the Procedure Act,
a dead body must be found, and identified as that of the
child of which she is alleged to have been delivered. A
woman, apparently pregnant, while staying at an inn, at
Stafford, received by post, on the 28th of August, 1870,
a Rugby newspaper with the Rugby postmark upon it.
On the same day her appearance and the state of her
room seemed to indicate that she had been delivered of
a child. She left for Shrewsbury next morning, carrying a
parcel. That afternoon a parcel was found in a waiting
room at Stafford station. It contained the dead body of
a newly-born child, wrapped in a Rugby Gazette, of
August 21th, bearing the Rugby postmark. There is a
railway from Stafford to Shrewsbury, but no proof was
given of the woman having been at Stafford Station :
Held, Montague Smith, J., that this evidence was insuffi-
cient to identify the body found as the child of which the
woman was said to have been delivered, and would not
therefore justify her conviction for concealment of birth. —
R. v. Williams, 11 Cox, 684.
Where death not proved conviction is illegal. — R, v.
Bell, 8 Ir. R. C. L. 541.
A. being questioned by a police-constable about the
224 OFFENCES AGAINST THE PERSON.
concealment of a birth, gave an answer which caused
the officer to say to her, " It might be better for you to
tell the truth and not a lie.'' Held, that a further state-
ment made by A. to the policeman after the above induce-
ment was inadmissible in evidence against her, as not being
free and voluntary. A. was taken into custody the same
day, placed with two accomplices, B. and C. and charged
with concealment of birth. All three then made state-
ments. Held, that those made by B. and C. could not be
deemed to be affected by the previous inducement to A.
and were, therefore, admissible against B. and C. respec-
tively, although that made by A. was not so. The prisoners
were sent for trial, but before their committal they
received the formal caution from the magistrate as to
anything they might wish to say. Whereupon A. made
a statement which was taken down in writing, as usual,
and attached to the deposition; Held, that this latter
statement of A. might be read at the trial as evidence
against herself. Mere proof that a woman was delivered
of a child and allowed two others to take away its body
is insufficient to sustain an indictment against her for
concealment of birch. — R. v. Bate, 11 Cox, 686.
A woman delivered of a child born alive, endeavored
to conceal the birth thereof by depositing the child while
alive in a corner of a field, when it died from exposure.
Held, that she could not be indicted under the above
section.— R. v. May, 16 X. T.Rep. 362.
The prisoner who lived alone had placed the dead body
of her new born child behind a trunk in the room she
occupied, between the trunk and the wall. On being
charged with having had a child, she at first denied it.
Held, sufficient to support a conviction for concealment
of birth.— R. v. Fiche", 30 U. G. C. P. 409.
CHAPTER 163.
AN ACT RESPECTING LIBEL.
TTER Majesty, by and with the advice and consent of the Senate
■*-■*- and House of Commons of Canada, enacts as follows: —
1. Every one who publishes or threatens to publish any libel upon
any other person, or directly or indirectly threatens to printor publish,
or proposes to abstain from printing or publishing of, or offers to
prevent the printing or publishing of any matter or thing touching any
other person, with intent to extort any money or security for money
or any valuable thing, from such person or from any other person,
or with intent to induce any person to confer upon or procure for any
person any appointment or office of profit or trust, is guilty of a mis-
demeanor, and liable to a fine not exceeding six hundred dollars, or
to imprisonment for any term less than two years, or to both. — 37
V., c 38, s. I, part, 6-7 V., c. 96, s. 3, Imp.
2. Every one who maliciously publishes any defamatory libel,
knowing the same to be false, is guilty of a misdemeanor, and liable
to a fine not exceeding four hundred dollars, or to imprisonment for
any term les3 than two years, or to both. — 37 V., c. 38, s. 2. 6-7 P.,
c. 96, s- 4, Imp.
3. Every one who maliciously publishes any defamatory libel is
guilty of a misdemeanor, and liable to a fine not exceeding two hundred
dollars, or to imprisonment for any terra not exceeding one year, or
to both.— 37 V., c. 38, s. 3. 6-7 V., c. 96, s. 5, Imp.
4. It shall, if pleaded, be a defence to an indictment or information
for a defamatory libel, that the defamatory matter was true, and that
it was for the public benefit that such matter should be published. —
37 V., c. 38, ss. 5 and 6, parts. 6-7 F.f c 96, s- 6, Imp.
5. Whenever, upon the trial of any indictment or information for
the publication of a defamatory libel, to which a plea of not guilty
has been pleaded, evidence is given which establishes against the
defendant a presumptive case of publication by his authority, by the
'act of any other person, the defendant may prove, and, if proved, it
shall be a good defence, that such publication was made without his
authority, consent or knowledge, and that such publication did not
arise from want of due care or caution on his part- — 37 V., c. 38, s.
10. 6-7 V., c. 96, s. 7, Imp.
Q
226 LIBEL,
6. Every person against whom any criminal proceedings are com-
menced or prosecuted in any manner for or on account of or in respect
of the publication of any report, paper, votes or proceedings, by such
person or by his servant, by or under the authority of any Legislative
Council, Legislative Assembly or House of Assembly, may bring
before the court in which such proceedings are so commenced or
prosecuted, or before any judge of the same, first giving twenty-four
hours' notice of his intention so to do, to the prosecutor in such pro-
ceedings, or to his attorney or solicitor, a certificate under tbe hand of
the speaker or clerk of any Legislative Council, Legislative Assembly
or House of Assembly, as the case may be, stating that the report,
paper, votes or proceedings, as the case may be, in respect whereof
such criminal proceedings have been commenced or prosecuted, was
or were published by such person, or by his servant, by order or under
the authority of any Legislative Council, Legislative Assembly or
House of Assembly, as the case may be, together with an affidavit
verifying such certificate ; and such court or judge shall thereupon
immediately stay such criminal proceedings, and the same shall be
and shall be deemed and taken to be finally put an end to, deter-
mined and superseded by virtue hereof. — 24 V. {P. E. I.), c- 31, s. 1.
3-4 V., c. 9, s. 1, Imp.
7. In case of any criminal proceedings hereafter commenced or
prosecuted for or on account or in respect of the publication of any
copy of such report, paper, votes or proceedings, the defendant, at any
stage of the proceedings, may lay before the court or judge such report,
paper, votes or proceedings, and such copy, with an affidavit verifying
such report, paper, votes or proceedings, and the correctness of such
copy; and the court or judge shall immediately stay such criminal
proceedings, and the same shall be and shall be deemed to be finally
put an end to, determined and superseded by virtue hereof. — 24 V.
(P. E. I. , c. 31, s. 2. 3-4 V., c 9, s. 2, Imp.
8. In any criminal proceeding commenced or prosecuted, for print-
ing any extract from or abstract of any such report, paper, votes or
proceedings, such report, paper, votes or proceedings may be given in
evidence, and it may be shown that such extract or abstract was
published bond fide and without malice, and if such is the opinion
of the jury, a verdict of not guilty shall be entered for the defendant.
- 24 V. {P. E. I.), c. 31, s. 3. 3-4 V., c. 9, s. 3, Imp.
PROCEDURE ACT.
SECTIONS ON LIBEL.
1-48. Every one accused of publishing a defamatory libel may
plead that the defamatory matter was true, and that it was for the
public benefit that such matter should be published, to which plea the
prosecutor may reply generally, denying the whole thereof. — 37 V., c.
38, s. 5, part, and s. 6, part- 6-7 V., c 96, s- 6, Imp.
149. Without such plea, the truth of the matters charged as libel-
lous in any such indictment or information, or that it was for the
public benefit that such matters should have b^en publishel, shall in
no case be inquired into. — 37 V., c 38, s. 7. 6-7 P., c. 96, s. 6, Imp.
150. If, after such plea, the defendant is convicted on such indict-
ment or information, the court, in pronouncing sentence, may consider
whether the guilt of the defendant is aggravated or mitigated by such
plea, and by the evidence given to prove or disprove the same. — 37 V.,
c. 38, s. 8. 6-7 Y., c. 96, s. 6, Imp.
151. In addition to such plea of justification, the defendant may
plead not guilty; and no defence otherwise open to the defenlant
under the plea of not guilty shall be taken away or prejudiced by
reason of such special plea- — 37 V., c- 38, s- 9. 6-7 V.,c 96, s. 6, Imp.
152. On the trial of any indictment or information for the making
or publishing of any defamatory libel, on the pleaof not guiltv pleaded,
the jury sworn to try the issue may give a general verdict of guilty or
not guilty, upon the whole matter put in issue upon such indictment
or information, and shall uot be required or directed, by the court or
udge before whom such indictment or information is tried, to find
the defendant guilty, merely on the proof of publication by such
defendant of the paper charged to be a defamatory libel, and of the
sense ascribed to the same in such indictment or information ; but
the court or judge before whom such trial is had shall, according to
the discretion of such court or judge, give the opinion and direction
of such court or judge to the jury, on the matter in issue, as in other
criminal cases ; and the jury may, on such issue, find a special verdict
if they think fit so to do; and the defendant, if found guilty, may
move in arrest of judgment on such ground and in such manner as
he might have done before the passing of this Act. — 37 V., c. 38, s. 4.
32 G. 3, c. 60, ss. 1, 2, 3, 4, Imp.
228 LIBEL.
153. In the case of an indictment or information by a private
prosecutor for the publication of a defamatory libel, if judgment is
given against the defendant he shall be liable for the costs sustained
by the prosecutor, by reason of such indictment or information ; and
if judgment is given for the defendant he shall be entitled to recover
from such prosecutor the costs incurred by him, by reapon of such
indictment or information ; and such costs, so to be recovered by the
prosecutor or defendant respectively, shall be taxed by the court,
judge or the proper officer of the court before which such indictment
or information is tried. — 37 V., c. 38, s. 12. 6-7 V., c 96, s. 8, Imp.
154- The costs mentioned in the next preceding section shall be
recoverable, either by warrant of distress issued out of the said court,
or by action or suit as for an ordinary debt. — 37 V., c- 38, s. 13.
The costs of showing cause against a rule for the filing
of an information are covered by sec. 153. — R. v. Steel,
13 Cox, 159.
Indictment for a false defamatory Libel. — The
Jurors for Our Lady the Queen upon their oath present,
that J. S., contriving, and unlawfully, wickedly, and
maliciously intending to injure, vilify, and prejudice one J. I
N., and to deprive him of his good name, fame, credit and I
reputation, and to bring him into public contempt, scandal, I
infamy and disgrace, on the first day of June, in the year I
of our Lord , unlawfully, wickedly, and maliciously
did write and publish, and cause and procure to be written 4
and published, a false, scandalous, malicious and defama- *
tory libel, in the form of a letter directed to the said J.
N. (or, if the publication were in any other manner ,
omit the words "in the form," etc.), containing divers
false, scandalous, malicious and defamatory matters and
things of and concerning the said J. N., and of and con-
cerning, etc. (here insert such of the subjects of the libel as \
it may be necessary to refer to by the innuendoes, in
setting out the libel), according to the tenor and effect
following, that is to say {here, set out the libel, together
LIBEL. 229
with such innuendoes as may be necessary to render it
intelligible), he the said J. S. then well knowing the said
defamatory libel to be false ; to the great damage, scandal
and disgrace of the said J. N„ to the evil example of all
others in the like case offending, and against the peace of
our lady the Queen, her crown and dignity.
Imprisonment not exceeding two years, and fine, c.
163, s. 2. If tlie prosecutor fail to prove the scienter, the
defendant may nevertheless be convicted of publishing a
defamatory libel, and punished by fine, or imprisonment
not exceeding one year, or both. — Id. s. 3. The defendant
may plead, in addition to the plea of not guilty, that the
matter's charged were true, and that it was for the public
benefit that they should be published, setting forth the
particular facts, by reason of u-hich the publication was
for the public benefit.
The offence of libel is not triable at quarter sessions.
Sec. 4, Procedure Act.
The defendant may allege and prove the truth of the
libel, in the manner and subject to the conditions men-
tioned.— S. 4, c. 163, and s. 148 of the Procedure Act.
The following may be the form of the special plea . —
And for a further plea in this behalf, the said J. S. saith
that Our Lady the Queen ought not further to prosecute
the said indictment against him, because he saith that it
is true that (etc., alleging the truth of every libellous
part of the publication) : and the said J. S. further saith,
that before and at the time of the publication in the said
indictment mentioned (state here the facts which rendered
the publication of benefit to the public); by reason whereof
U was for the public benefit that the said matters so
charged in the said indictment should be published.
And this, etc. This plea may be pleaded with the general
230 LIBEL.
issue. Evidence that the identical charges contained in
a libel had, before the time of composing and publishing
the libel which is the subject of the indictment, appeared
in another publication which was brought to the prose-
cutor's knowledge, and against the publisher of which
he took no legal proceedings, is not admissible under
this section. M. v. Newman, Dears. 85 ; 1 E. & B. 268.
Where the plea contains several charges, and the defen-
dant fails in proof of any of the matters alleged in it,
the jury must of necessity find a verdict for the crown;
and the court, in giving judgment, is bound to consider
whether the guilt of the defendant is aggravated or miti-
gated by the plea, and by the evidence given to prove
or disprove it, and form its own conclusion on the whole
case.— Id. 1 E. & B. 558.
The replication may be as follows • — And as to the plea
of the said J. S., by him secondly above pleaded, the said
A. B. (the clerk of assize or clerk of the peace) saith that
by reason of anything in the said second plea alleged,
Our said* Lady the Queen ought not to be precluded from
further prosecuting the said indictment against the said
J. S., because he saith, that he denies the said several
matters in the said second plea alleged, and saith that
the same are not, nor are nor is any or either of them,
true. And this he the said A. B. prays may be inquired
of by the country, etc. And the said J. S. doth the like.
Therefore, etc.
Indictment for treatening to publish a libel, etc., with
intent to extort money, etc unlawfully did threaten
one J. N. to publish a certain libel of and concerning him
the said J. N. (** if any person shall publish, or threaten
to publish, any libel upon any other person, or shall
directly or indirectly threaten to print or publish, or
LIBEL. 231
shall directly or indirectly propose to abstain from print-
ing or publishing, or shall directly or indirectly offer to
prevent the pr^inting or publishing of any matter or tiling
touching any other person "), with intent thereby then
to extort money from the said J. X. (u uith intent to
extort any money or security for money, or any valuable
thing, from such or any other person, or ivith intent to
induce any person to confer or procure for any person
any appointment or office of profit or trust" ). If it be
doubtful whether the matter threatened to be published
be libellous, add a count charging that the defendant
" did propose to the said J. N. to abstain from printing
and publishing a certain matter and thing touching the said
J. X. (or one J. F.) with intent, etc."
What is a libel? Duties of grand jurors on an indict-
ment for libeL — Chief Justice Dorion, 10 L. N. 361.
Information for a libel. — Ex parte Gugy, 8 L. C. R.
353.
Under sec. 4, ante, and sec. 148 of the Procedure Act,
the magistrate has no jurisdiction to receive evidence of
the truth of the libel, upon an information. — R. v. Car-
den, 5 Q. B. D. 1, 14 Cox, 359.
In a case of libel, it is no ground to change the venue
that a fair trial cannot be had in a particular venue, that
many of the defendant's witnesses reside at a distance, and
the defendant has no funds to bring them to that venue. —
R. v. Casey, 13 Cox, 614.
On sec. 4 of the Act, see R. v. Laurier, 11 R. L. 1 84. —
On sec. 5, see R, v. HolbrooJc, 3 Q. B. D. 60 ; 4 Q. B. D.
42 ; 13 Cox, 650 ; 14 Cox, 185. As to right of the Crown
to set aside jurors in cases of libel, see R. v. Pateson, 36,
U. C. Q. B, 127, and R. v. Maguire, 13 Q. L. R. 99, under
sec. 165 of the Procedure Act, post.
232 LIBEL,
It must be proved that the defendant was proprietor or
publisher of the journal at the time of the publication of
the libel. That he is at the time of the trial is not suf-
ficient.— R. v. Sellars, 6 L. N. 197.
Under sec. 152 of the Procedure Act, ante, see R. v.
Dougall, 18 L. C. J. 85.
The defendant was indicted for a malicious libel, and
specially pleaded the truth of the libel as well as the plea
of not guilty. Under this plea he endeavoured to prove
justification. Held, that evidence not admissible, as, under
the statute, to be allowed to justify, the defendant has to
plead not only that the publication was true, but also that
it was made for the public good. — R. v. Hickson, 3 L.
N. 139.
See R. v. Ldbouchere, 14 Cox, 419, as to the suffi-
ciency of a plea of justification.
As to what constitutes a guilty knowledge under sec-
tion 2 of the Libel Act, and that it is for the jury to decide
under a plea of justification if the statement complained
of is true, and if it was published for the public benefit.
See R. v. Tasst, 8 L. If. 98.
No action for libel by a wife against her husband. — R.
v. Lord Mayor, 16 Q. B. D. 772 ; 16 Cox, 81.
On an accusation for libel, it is no defence that the libel
was published with " no personal malice." — R. v. " The
World," 13 Cox, 305.
On an indictment for publishing an obscene book, the
passages of the book upon which the charge is brought
must be set out. — R. v. Bradlaugh, 14 Cox, 68.
The truth of a seditious or blasphemous libel cannot be
pleaded to an indictment for such libel. Sec. 4, ante, of
the Act does not apply to such libels, but sec. 5 applies. —
R. v. Bradlaugh, 15 Cox, 217 ; R. v. Ramsay, 15 Cox,
231. Ex parte O'Brien, 15 Cox, 180.
LIBEL. 233
Held, 1. A criminal information (for libel) will not be
granted except in case of a libel on a person in authority,
and in respect of duties pertaining to his office.
2. Where a libel was directed against M., who was at
the time attorney general, but alleged improper conduct
upon his part when he was a judge, an information was
refused.
3. The applicant for a criminal information must rely
wholly upon the court for redress, and must come there
entirely free from blame.
4. Where there is foundation for a libel, though it falls
far short of justification, an information will not be granted.
— The Queen v. Biggs, 2 Man. L. R. 18.
LARCENY.
GENERAL REMARKS.
Larceny is the wrongful taking and carrying away of
the personal goods of any one from his possession, with
a felonious intent to convert them to the use of the
offender, without the consent of the owner ; 2 East, P. C.
553 ; the word " felonious " showing that there is no
color of right to excuse the act, and the " intent " being
to deprive the owner permanently of his property. — R.
v. Thurborn, 1 Den. 388 ; R. v. Guernsey, 1 F. & F.
394; R. v. Holloway, 1 Den. 370; 3 Burn, 198; 2
Russ. 146, note by Greaves; R. v. Middleton, 12 Cox,
417.
It is not, however, an essential ingredient of the offence
that the taking should be for a cause of gain, Uteri causd ;
a fraudulent taking, with intent wholly to deprive the
owner of his property, or with intent to destroy it, is
sufficient. But see post, on this question of intent in
larceny.
Larceny is either simple, that is, unaccompanied by any
other aggravating circumstance, or compound, that is,
when it is accompanied by the aggravating circumstances
of taking from the house or person, or both.
Larceny was formerly divided into grand, larceny and
petit larceny ; but this distinction is now abolished. See
post, sect. 3 of the Larceny Act.
By sect. 86 of the said Act, a more severe punish-
ment may be inflicted when the value of the article
stolen is over two hundred dollars, but then this value
must be alleged in the indictment and duly proved on
LARCENY. 235
the trial, otherwise the larceny is punishable under sec-
tion 5 of the said Act.
The requisites of the offence are :
1. The taking.
2. The carrying away.
3. The goods taken.
4. The owner of the goods.
5. The owner's dissent from the taking.
6. The felonious intent in taking.
1.— THE TAKING.
To constitute the crime of larceny, there must be a
taking or severance of the thing from the actual or con-
structive possession of the owner ; for all felony includes
trespass, and every indictment must have the words
feloniously took as well as carried away ; from whence it
follows that, if the party be guilty of no trespass in tak-
ing the goods, he cannot be guilty of felony in carrying
them away. — 1 Hawkins, p. 142. As in the case of a wife
carrying away and converting to her own use the goods
of her husband, for husband and wife are one person in
law, and, consequently, there can be no taking so as to
constitute larceny ; 1 Hale, 514, and the same if the hus-
band be jointly interested with others in the property so
taken. — R. v. Willis, 1 Moo. C. C. 375.
The taking, however, may be by the hand of another ;
2 East, P. C. 555 ; as if the thief procure a child within
the age of discretion to steal goods for him, it will be
the same as if he had taken them himself, and the taking
in such case should be charged to him 1 Hale, 507.
The possession of the owner may be actual or con-
structive ; that is, he may have the goods in his manual
possession, or they may be in the actual possession o
236 LAECENY.
another, and at the same time be constructively in the
owner's possession; and they may be his property by
virtue of some contract, and yet not have been reduced
by him into actual possession ; in which case, his pos-
session is constructive, as by placing them under his
servant's care to be by him managed for him.
But besides the actual and constructive possession in
the owner, who at the same time has the property in
him, there is a possession distinct from the actual pro-
perty, although arising out of an interest in the goods,
acquired by contract, as in the case of one who has
possession of goods in pledge, or of goods lent, or let.
Such an one has a property, as well as possession, con-
current with the absolute property of the real owner,
and either defeasible or reducible into an absolute pro-
perty, according to the terms agreed upon between him
and the actual owner.
Either of the above kinds of possession will be sufficient
to sustain an indictment of larceny from the absolute
owner. — 3 Burn, 201.
This part of the law on larceny is laid down as follows
in the draft of a Criminal Code for Canada, introduced
in the Legislative Assembly, in 1850, by Mr* Justice
Badgley, then Attorney General ; " To constitute lar-
ceny, a thing must be owned by, or be the general or
special property of some one, or belong to him, either
by a proprietory or possessory right thereto. A pro-
prietory right is that of one having a general or special
property in a thing. A possessory right is that of one
having and being entitled to the possession of a thing.
One having the authorized custody of or being entrusted
with a thing, so as to be answerable therefor, or for the
value thereof, has a possessory right thereto. The
LAKCEXY. 237
actual possession of a tiling by any one is the construc-
tive possession of all who have proprietory or possessory
rights therein, general or special, absolute or qualified.
A proprietory or a possessory right to a thing by one
constitutes him the owner thereof as to larceny thereof
by another."
As very nice questions frequently arise, as to what will
amount to a sufficient taking, where the owner of the
chattels has delivered them to the party accused, or to a
third person, the subject will be inquired into in the follow-
ing order :
1. The talcing where the owner has delivered the
chattels, under a bare charge.
2. The taking where the possession of the goods has
been obtained animo furandi.
3. The taking where the possession of the goods has
been obtained bond fide, without any fraudulent inten-
tion in the, first instance.
4. The taking where the offender has more than a
special property in the goods. — 3 Burn, 201.
1. The taking where the offender has a bare charge.
The books notice cases in which, although the manual
custody be out of the owner, and delivered by him to
another, yet the possession, absolute as well as construc-
tive, is deemed to remain in him, and the possession of the
other to be no more than a bare charge.
Upon this difference between a possession and a charge,
Lord Coke says : " There is a diversity between a pos-
session and a charge : for, when I deliver goods to a man,
he hath the possession of the goods, and may have an
action of trespass if they be taken or stolen out of his pos-
session. But my butler, or cook, that in my house hath
charge of my vessels or plate, hath no possession of them,
238 LARCENY.
nor shall have an action of trespass as the bailee shall ;
and, therefore, if they steal the plate, etc., it is larceny,
and so it is of a shepherd, for these things be in onere et
non in possessione promi, coci, pastoris, etc."
So he says : " If a taverner set a piece of plate before a
man to drink in it, and he carry it away, it is larceny ; for
it is no bailment, but a special use to a special purpose."
The servant who keeps a key to my chamber may be
guilty of felony in fraudulently taking away the goods
therein, for he hath only a bare charge given him. And
where a person employed to drive cattle sells them, it is lar-
ceny, for he has the custody merely, and not the right to the
possession. — R. v. McNamee, 1 Moo. C. C. 368 ; although
the intention to convert them were not conceived until
after they were delivered to him. — R. v. Harvey, 9 G. &
P. 353 ; R. v. Jackson, 2 Moo. G. G. 32. So a carter going
away with his master's cart was holden to have been guilty
of felony. — jR. v. Robinson, 2 East, P. C. 565. If A. ask
B., who is not his servant, to put a letter into the post,
telling him that it contains money, and B. break the seal
and abstract the money before he puts the letter in the
post, he is guilty of larceny. — R. v. Jones, 7 G. &P. 151.
So if a master deliver property into the hands of a ser-
vant for a special purpose, as to leave it at the house of a
friend, or to get change, or to deposit it with a banker, the
servant will be guilty of felony in applying it to his own
use ; for it still remains in the constructive possession
of its owner. — 1 Leach, 302 ; 2 Leach, 870.
So where a lady asked the prisoner to get a railway
ticket for her, and handed him a sovereign to pay for it,
which he took, intending to steal, and instead of getting
the ticket, ran away ; it was held to be larceny. — R. v.
Thompson, L. & G. 225.
LAECENY. 239
If a banker's clerk is sent to the money room to bring
cash for a particular purpose, and he takes the opportunity
of secreting some for his own use, 1 Leach, 344 ; or if a
tradesman intrust goods to his servant to deliver to a cus-
tomer, and he appropriate them to himself, the parties are
respectively guilty of larceny. — R. v. Bass, 2 East, P. C.
566 ; 1 Leach, 251 ; 1 Coivp. 294.
And if several people play together at cards, and deposit
money for that purpose, not parting with their property
therein, and one sweep it all away and take it to himself,
he will be guilty of larceny, if the jury find that he acted
with a felonious design. — 1 Leach, 270 ; R. v. William, 6
C. & P. 390 ; R. v. Robson, R. & R. 413.
And if a bag of wheat be delivered to a warehouseman
merely for safe custody, and he takes all the wheat out of
the bag, and dispose of it, it is larceny. — R. v. Brazier,
R. & R. 337.
An unauthorized gift by the servant of his master's
goods is as much a felony as if he sold or pawned them. —
R. v. White, 9 C. & P. 344.
Where goods have not been actually reduced into the
owner's possession, yet, if he has intrusted another to
deliver them to his servant, and they are delivered
accordingly, and the servant embezzle them, he may be
guilty of larceny. — R. v. Spears, 2 East, P. C. 568 ; R.
v. Abrahat, 2 East, P. C. 569 ; R. v. Reed, Dears. 257.
On the trial of an indictment for larceny as a servant it
appeared that the prisoner lived in the house of the prose-
cutor, and acted as the nurse to her sick daughter, the pris-
oner having board and lodging and occasional presents for
her services, but no wages ; while the prisoner was so
residing, the prosecutor's wife gave the prisoner money to
pay a coal bill, which money the prisoner kept, and brought
240 LARCENY.
back a forged receipt to the coal bill : Held, that the pris-
oner was not the servant of the prosecutor, but that this
was a larceny of the money. — R. v. Frances, 1 C. & K.
423.
These several cases were all founded upon the master
having an actual or legal possession, prior to the delivery
to the servant. But there are others in which the master
has neither 'property nor possession in the goods, pre-
viously to the receipt of them by his servant from a third
person, for the purpose of delivering them to him. And
it has been held, that a servant so receiving goods, and
then embezzling them, is not guilty of larceny at common
law.— 2 East, P. C. 568.
Therefore, if a shopman receive money from a customer
of his master, and, instead of putting it into the till, secrete
it, R. v. Bull, 2 Leach, 841 ; or if a banker's clerk receive
money at the counter, and, instead of putting it into the
proper drawer, purloin it, R. v. Bazely, 2 Leach, 835 ; or
receive a bond for the purpose of being deposited in the
bank, and, instead of depositing it, convert it to his own
use, R. v. Waite, 1 Leach, 28 : in these cases it has been
holden that the clerk or shopman is not guilty of larceny,
at common law.
But now, this offence is punishable under sec. 52 of the
Larceny Act. See post.
2. The taking uhere the possession of the goods has
been obtained animo furandi. Where the offender
unlawfully acquired the possession of goods, as by fraud
or force, with an intent to steal them, the owner still
retaining his property in them, such offender will be guilty
of larceny in embezzling them. Therefore, hiring a horse
on pretence of taking a journey, and immediately selling
it, is larceny; because the jury found the defendant acted
LARCENY. 241
animo furandi in making the contract, and the parting
with the possession merely had not changed the nature of
the property. — R. v. Pear, 1 Leach, 212. And so, where
a person hires a post-chaise for an indefinite period, and
converts it to his own use, he may be convicted of larceny,
if his original intent was felonious. — R. v. Sample, 1
Leach, 420.
So, where the prisoner, intending to steal the mail bags
from the post office, procured them to be let down to him
by a string, from the window of the post office, under pre-
tence that he was the mail guard, he was held guilty of
larceny.— R. v. Pearce, 2 East, P. C. 603.
Where the prisoner was hired for the special purpose of
driving sheep from one fair to another, and, instead of
doing so, drove them, the following morning after he
received them, a different road, and sold them; the jury
having found that, at the time he received the sheep, he
intended to convert them to his own use, and not drive
them to the specified fair, the j udges were unanimously of
opinion that he was rightly convicted of larceny. — R. v.
Stock, 1 Moo. C. C. 87.
Where the prisoner covered some coals in a cart with
slack, and was allowed to take the coals away, the owner
believing the load to be slack, and not intending to part
with his property in the coals, it was held a larceny of the
coals. — R. v. Bramley, L. <£ C. 21.
Prevailing upon a tradesman to bring goods, proposed
to be brought to a given place, under pretence that the
price shall then be paid for them, and further prevailing
upon him to leave them there in the care of a third person,
and then getting them from that person without paying
the price, is a felonious taking, if, ab initio, the intention
was to get the goods from the tradesman and not pay for
them.— R. v. Campbell, 1 Moo. C. C. 179.
R
242 LARCENY.
In another case, a person by false pretences induced a
tradesman to send by his servant to a particular house,
goods of the value of two shillings and ten pence, with
change for a crown piece. On the way, he met the ser-
vant, and induced him to part with the goods and the
change for a crown piece, which afterwards was found to
be bad. Both the tradesman and servant swore that the
latter had no authority to part with the goods or change
without receiving the crown piece in payment, though the
former admitted that he intended to sell the goods, and
never expected them back again : it was held that the
offence amounted to larceny. — B. v. Small, 8 G. & P. 46.
The prosecutor met a man and walked with him.
During the walk, the man picked up a purse, which he
said he had found, and that it was dropped by the prisoner.
He then gave it to the prisoner who opened it, and there
appeared to be about forty pounds in gold in it. The pris-
oner appeared grateful, and said he would reward the man
and the prosecutor for restoring it. The three then went
to a public house and had some drink. Prisoner then
showed some money, and said if the man would let him
have ten pounds, and let him go out of his sight, he would
not say what he would give him. The man handed what
seemed to be ten pounds in money, and the prisoner
and prosecutor then went out together. They returned,
and prisoner appeared to give the ten pounds back
and five pounds more. Prisoner then said he would do
the same for the prosecutor, and by that means obtained
three pounds in gold, and the prosecutor's watch and chain
from him. The prisoner and the man then left the public
house, and made off with the three pounds and the watch
and chain. At the trial, the prosecutor said he handed the
three pounds and the watch and chain to the men in terror,
LARCENY. 243
being afraid they would do somethiug to hira, and not
expecting they would give hira five pounds. Held, that
the prisoner was properly convicted of larceny. — R. v.
Hazell, 11 Cox, 597.
Prosecutor sold onions to the prisoners, who agreed to
pay ready money for them. The onions were unloaded at
a place indicated by the prisoners, and the prosecutor was
then induced to make out and sign a receipt which the
prisoners got from him, and then refused to restore the
onions or pay the price. The jury convicted the prisoners
of larceny, and said that they never intended to pay for
the onions, and that the fraud was meditated by them from
the beginning. Held, that the conviction was right. — R.
v. Slowly, et al., 12 Cox, 269.
So, taking goods the prisoner has bargained to buy is
felonious, if, by the usage, the price ought to be paid before
they are taken, and the owner did not consent to their being
taken, and the prisoner, when he bargained for them, did
not intend to pay for them, but meant to get them into his
possession and dispose of them for his own benefit, without
paying for them. — R. v. Gilbert, 1 Moo. C. C. 185.
So, getting goods delivered into a hired cart, on the ex-
press condition that the price shall be paid for them before
they are taken from the cart, and then, getting them from
the cart, without paying the price, will be larceny, if the
prisoner never had the intention to pay, but had, ab initio,
the intention to defraud. — R. v. Pratt, 1 Moo. C. C. 250.
So, where the prosecutor, intending to sell his horse,
sent his servant with it to a fair, but the servant had no
authority to sell or deal with it in any way, and the
defendants, by fraud, induced the servant to part with the
possession of the horse, under color of an exchange for
another, intending all the while to steal it ; this was holden
to be larceny. — R. v. SJieppard, 9 C. <£ P. 121.
244 LARCENY.
So, where the prisoner, pretending to be the servant of
a person who had bought a chest of tea deposited at the
East India Company's warehouse, got a request paper and
permit for the chest, and took it away with the assent of a
person in the company's service who had the charge of it ;
it was held that this was larceny. — R. v. Hench, R. & R.
163.
Prisoner and a confederate went to prosecutor's shop to
buy something, and put down a florin in payment. Prose-
cutor put the florin into the till and placed the change on the
counter, which the prisoner took up. The confederate said,
" You need not have changed," and threw down a penny
on the counter, which the prisoner took up, and put a six-
pence in silver and sixpence in copper down, and asked
prosecutor to give him a shilling for it. Prosecutor took
a shilling from the till, and put it on the counter when
prisoner said, " You may as well give me the florin back
and take it all." Prosecutor took the florin from the till,
and put it on the counter, expecting to receive two shil-
lings of the prisoner's money in lieu of it. Prisoner took
up the florin, and prosecutor took up the silver sixpence
and the sixpence in copper, and the shilling put down by
herself, and was putting them in the drawer, when she saw
that she had only got one shilling of the prisoner's money
and her own shilling : but, at that moment, her attention
was diverted by the confederate, and both confederate and
prisoner quitted the shop. Held, upon a case reserved,
that this was a case of larceny, for the transaction of
exchange was not complete : prosecutor had not parted with
the property in the florin. — jR. v. McKale, 11 Cox, 32.
On the other hand, if the owner give his property volun-
tarily, whatever false pretence be used to obtain it, no felony
can be committed. — 1 Hale, 506 ; R. v. Adams, R. & R.
225.
LARCENY. 245
Thus, where, in a case of ring-dropping, the prisoners pre-
vailed on the prosecutor to buy the share of the other party,
and the prosecutor was prevailed on to part with his money,
intending to part with it for ever, and not with the posses-
sion of it only, it was held by Coleridge, J., that this was
not a larceny. — R. v. Wilson, 8 C. & P. 111.
It was the duty of the prisoner to ascertain the amount
of certain dock dues payable by the prosecutors, and hav-
ing received the money from their cash keeper, to pay the
dues to those who were entitled to them. He falsely
represented a larger sum to be due than was due, and, paying
over the real amount, converted the difference to his own
use. This was held not to be a larceny. — R. v. Thompson,
L. <k C. 233.
So, where the prisoner was sent by his fellow workmen
to get their wages, and received the money from the
employer done up in separate pieces of paper, and con-
verted the money to his own use, it was held upon an
indictment laying the property in the employer that the
prisoner could not be convicted, he being the agent of the
workmen. — R. v. Barnes, 12 Jur. X. S. 549. And see
R. v. Jacobs, 12 Cox, 151, post.
A cashier of a bank has a general authority to part
with his employer's money in payment of such cheques
as he may think genuine ; where, therefore, money has
been obtained from a cashier at a bank on a forged cheque
knowingly, it does not amount to the crime of larceny.
-R, v. Prince, 11 Cox, 193. In this case, Bovill,C. J., said :
" The distinction between larceny and false pretences is very
material. The one is a felony and the other a misdemeanor ;
and, although, by reason of modern legislation, it has
become not of so much importance as formerly, it is still
desirable to keep up the distinction. To constitute a
246 LARCENY.
larceny, there must be a taking of the property against
the will of the owner, which is the essence of the crime
of larceny. The authorities cited by the counsel for the
prisoner show that where the property has been obtained
voluntarily from the owner, or a servant acting within
the scope of his authority, the offence does not amount
to larceny. The cases cited for the prosecution were
cases where the servant who parted with the property
had a limited authority only. In the present case, the
cashier of the bank was acting within his authority in
parting with the possession and property in the money.
Under these circumstances the conviction must be
quashed."
And if credit be given for the property, for ever so
short a time, no felony can be committed in converting
it.— 2 East, P. C. 677.
Thus, obtaining the delivery of a horse sold, on pro-
mise to return immediately and pay for it, and riding off,
and not returning, is no felony. — R. v. Harvey, 1 Leach,
467.
So, where the prisoner, with a fraudulent intent to
obtain goods, ordered a tradesman to send him a piece of
silk, to be paid for on delivery, and upon the silk being
sent accordingly, gave the servant who brought it bills
which were mere fabrications, and of no value ; it was
holden not to be larceny on the ground that the servant
'parted with the property by accepting such payment as
was offered, though his master did not intend to give the
prisoner credit. — Parke's Case, 2 Leach, 614.
The prisoner, having entered into a contract with the
prosecutors for the purchase of some tallow, obtained the
delivery orders from the prosecutors, by paying over to
them a cheque for the price of the tallow, and, when the
LARCENY. 247
cheque was presented, there were no assets. Held, not to
be a larceny of the delivery orders by a trick, but a lawful
possession of them by reason of the credit given to the
prisoner in respect of the cheque. — R. v. North, 8 Cox,
433.
So, fraudulently winning money at gaming, where the
injured party really intended to pay, is no larceny, though
a conspiracy to defraud appear in evidence. — R. v. Nich-
olson, 2 Leach, 610.
To constitute larceny, there must an original felon-
ious design. Lord Coke draws a distinction between
such as gain possession animo furandi, and such as do
not. He says : " The intent to steal must be when it
comes to his hands or possession ; for if he hath the pos-
session of it once lawfully, though he hath the animus
furandi afterwards, and carrieth it away, it is no larceny."
Therefore, where a house was burning, and a neighbor
took some of the goods to save them, but afterwards
converted them to his own use, it was held no felony. —
1 Leach, 411.
But if the original intent be wrongful, though not a
felonious trespass, a subsequent felonious appropriation
is larceny. So, where a man drove away a flock of lambs
from a field, and in doing so inadvertently drove away
along with them a lamb, the property of another person,
and, as soon as he discovered that he had done so, sold
the lamb for his own use, and then denied all knowledge
of it. Held, that as the act of driving the lamb from the
field in the first instance was a trespass, as soon as
lie resolved to appropriate the lamb to his own use, the
trespass became a felony. — R. v. Riley, Dears. 149 ;
6 Cox, 88.
It is peculiarly the province of the jury to determine
248 LARCENY.
with what intent any act is done ; and, therefore, though,
in general, he who has a possession of anything on deli-
very by the owner cannot commit larceny thereof; yet,
that must be understood, first, where the possession is
absolutely changed by the delivery, and next, where such
possession is not obtained by fraud, and with a felonious
intent. For, if, under all the circumstances of the case,
it be found that a party has taken goods from the owner,
although by his delivery, with an intent to steal them,
such taking amounts to felony. — 2 East, P. C. 685.
Overtures were made by a person to the servant of a
publican to induce him to join in robbing his master's
till. The servant communicated the matter to the master,
and, some weeks after, the servant, by the direction of the
master, opened a communication with the person who
had made the overtures, in consequence of which he came
to the master's premises. The master, having previously
marked some money, it was, by his direction, placed upon
the counter by the servant, in order that it might be
taken up by the party who had come for the purpose.
It was so taken up by him. Held, larceny in such party.
— R. v. Williams, I C. & K. 195.
3. — The taking, where the possession of the goods has
been obtained bond fide without any fraudulent intention
in the first instance. — If the party obtained possession of
the goods lawfully, as upon a trust for, or on account of,
the owner, by which he acquires a special property therein,
he cannot at common law be afterwards guilty of felony
in converting them to his own use, unless by some new
and distinct act of taking, as by severing part of the goods
from the rest, with intent to convert them to his own use,
he thereby determines the privity of the bailment and the
special property thereby conferred upon him. — 1 Hale,
504 ; 2 East, P. C. 554.
LARCENY. 249
But now, by sect. 4 of the Larceny Act., it is provided
that : " Every one who being a bailee of any chattel,
money or valuable security, fraudulently takes or converts
the same to his own use, or to the use of any person other
than the owner thereof, although he does not break bulk
or otherwise determine the bailment, is guilty of larceny,
and may be convicted thereof upon an indictment for
larceny ; but this section shall not extend to any offence
punishable on summary conviction."
See R. v. Wells, 1 F. & F. 109, where it was held that
a carrier who receiving money to procure goods obtained
and duly delivered the goods, but fraudulently retained the
money, may be convicted of larceny as a bailee.
A man cannot, however, be convicted of larceny as a
bailee, unless the bailment was to re-deliver the very same
chattel or money. — R. v. Hoare, 1 F. & F. 647; R. v.
Garrett, 2 F. A F. 14 ; R. v. Hassall, L. & C. 58.
The prisoner was intrusted by the prosecutor with
money to buy a load of coals, which were to be brought to
the prosecutor's by the prisoner in his own cart, the pris-
oner being paid for his services, including the use of his horse
and cart. He bought a load of coals in his own name, and
on tbe way to the prosecutor's abstracted a portion of the
coal and converted it to his own use, delivering the rest of
the coal to the prosecutor as and for the whole load. Eeld,
that he was rightly convicted of larceny as a bailee. — R. v.
Bunkall, L. & C. 371 ; 9 Cox, 419.
A carrier employed by the prosecutor to deliver in his>
the prisoner's, cart, a boat's cargo of coals to persons named
in a list, to whom only he was authorized to deliver them,
and having fraudulently sold some of the coals and appro-
priated the proceeds, is properly convicted of larceny as a
bailee.— R. v. Davies, 10 Cox, 239.
250 LAKCENY.
It seems that a married woman may be a bailee within
the meaning of sect. 4 of the Larceny Act ; R. v. Robson,
L. & C. 93, notwithstanding a previous ruling to the con-
trary by Martin, B., in R. v. Benmour, 8 Cox, 440.
See, post, remarks under section 4 of the Larceny Act.
4. The talcing where the offender has more than a
special 'property in the goods. If the goods of a husband
be taken with the consent or privity of the wife, it is
not larceny. — R. v. Harrison, 1 Leach, 47 ; R. v. Avery,
Bell, C. C. 150.
However, it is said that if a woman steal the goods of her
husband, and give them to her avowterer, who, knowing it?
carries them away, the avowterer is guilty of felony ; Bait,
c. 104. And where a stranger took the goods of the hus-
band jointly with the wife, this was holden to be larceny
in him, he being her adulterer. — R. v. Tolfree, 1 Moo. C. C.
243, overruling R. v Clarke, 1 Moo. C. C. 376, note a.
Also, in R. v. Featherstone, Bears. 369, the prisoner
was charged with stealing twenty-two sovereigns and some
wearing apparel. The prosecutor's wife took from the pro-
secutor's bedroom thirty-five sovereigns and some articles
of clothing, and left the house, saying to the prisoner, who
was in a lower room : " It's all right, come on." The pris-
oner and the prosecutor's wife were afterwards seen toge-
ther, and were traced to a public house, where they slept
together. When taken into custody, the prisoner had
twenty-two sovereigns on him. The jury found the pris-
oner guilty on the ground that he received the sovereigns
from the wife, knowing that she took them without the
authority of her husband. Upon a case reserved, it was
held that the conviction was right. Lord Campbell, C. J., in
delivering the judgment, said : " We are of opinion that this
conviction is right. The general rule of law is, that a wife
LAECENY. 251
cannot be found guilty of larceny for stealing the goods of
her husband, and that is upon the principle that the hus-
band and wife are, in the eye of the law, one person ; but
this rule is properly and reasonably qualified when she
becomes an adulteress. She thereby determines her quality
of wife, and her property in her husband's goods ceases."
— See B. v. Berry, Bell, C. C. 95, where the same principle
was maintained.
And so it is, even though no adultery has been com-
mitted, but the goods are taken with the intent that the
wife shall elope and live in adultery with the stranger. —
B. v. Tollett, C. d-M.112; B. v. Thompson, IDen. 549.
And if a servant, by direction of his master's wife,
carries off his master's property, and the servant and wife
go off together with the property with the intention of
committing adultery, the servant may be indicted for
stealing the property. — B. v. Mutters, L. & C. 511.
It seems, however, that if a wife elopes with an adul-
terer, it is no larceny in the adulterer to assist in carrying
away her necessary wearing apparel. — B. v. Fitclt, Dears.
& B. 187, overruling on this point the direction of Cole-
ridge, J., in B. v. Tollett, cited supra.
The prisoner who had lodged at the prosecutor's house
left it, and the next day the prosecutor's wife also left,
taking a bundle with her, which, however, was not large
enough to contain the things which, the evening she left, it
was found had been taken from the house. Two days after,
all the things were found in the prisoner's cabin, or
on his person, in a ship in which the prosecutor's wife
was, the prisoner and the prosecutor's wife having taken
their passage in the ship as man and wife. It was
held that from these facts the jury were justified in drawing
the inference that the prisoner had received the property,
252 LAECENY.
knowing it to have been stolen. — R. v. Deer, L. &. C. 240.
But an adulterer cannot be convicted of stealing the
goods of the husband brought by the wife to his house, in
which the adultery is afterwards committed, merely upon
evidence of their being there, unless they be traced to his
personal possession. — R. v. Rosenberg, 1 C. & K. 233.
When a wife absconds from the house of her husband with
her avowterer, the latter cannot be convicted of stealing
the husband's money missing on their departure, unless
he be proved to have taken some active part, either in
carrying away or in spending the money stolen. — R. v.
Taylor, 12 Cox, 627.
Nor can an avowterer be found guilty of felonious
receiving of the husband's property taken by the wife, as
a wife cannot steal her husband's property. — R. v. Kenny,
13 Cox, 397.
The prisoner eloped with the prosecutor's wife, travel-
ling in a cart which the wife took from her husband's
yard. The prisoner sold the pony, cart and harness in
the presence of the wife, who did not object to the sale,
and received the proceeds which she retained after pay-
ing the prisoner a sovereign he had expended in obtain-
ing lodging, while they were living in a state of adultery.
Held, that the presence of the woman did not alter the
offence ; that the fact that he negotiated the sale and
received part of the proceeds was sufficient ; from the
circumstances, the prisoner must have known that the
pony, cart and harness were not the property of the
woman ; and that if the jury were of opinion he had
that knowledge, they were bound to convict him. R.
v. Harrison, 12 Cox, 19. — R. v. Flatman, 14 Cox, 396.
Under certain circumstances, indeed, a man may com-
mit felony of his own goods ; as if A. bail goods to B. and
LABCENY. 253
afterwards, animo fare mdi, steal the goods from B. with
design to charge him for the value of them, this is felony.
—1 Hale, 513; 2 East, P. C. 558.
So where A. having delivered money to his servant to
carry to a certain place, disguised himself, and robbed the
servant on the road, with intent to charge the hundred,
this was held robbery in A. — 2 East, P. C. 558.
If a man steal his own goods from his own bailee,
though he has no intent to charge the bailee, but his
intent is to defraud the King, yet, if the bailee had an
interest in the possession and could have withheld it
from the owner, the taking is a larceny. — R. v. Wilkin-
son, R. <t- R. 470. But it is said in Roscoe, Cr. Evid.
597 : " It may be doubted whether the law has not been
somewhat distorted in this case in order to punish a
flagrant fraud."
Bishop, 2 Cr. L. 790, says : " If one, therefore, has
transferred to another a special property in goods, retain-
ing in himself the general ownership, or, if the law has
made such transfer, he commits larceny by taking them
with felonious intent."
So if a man steal his goods in custodiA legis. But " if :
the goods stolen were the general property of the defen-
dant, who took them from the possession of one to whose
care they had been committed, as, for instance, from an
officer seizing them on an execution against the defendant^
it must be shown that the latter knew of the execution
and seizure ; otherwise the required intent does not
appear. The presumption, in the absence of such know-
ledge, would be, that he took the goods, supposing he had
the right so to do." — 2 Bishop, Cr. proc. 749.
If a part owner of property steal it from the person
in whose custody it is, and who is responsible for its
254 LARCENY.
safety, he is guilty of larceny. — R. v. Bramley, R. & R.
478. See post, sect. 58 of the Larceny Act, and remarks
under it.
A wife may steal the goods of her husband which have
been bailed or delivered to another person, or are in the
possession of a person who has a temporary special pro-
perty in them. — 1 Hale, 513.
The wife cannot commit larceny in the company of
her husband ; for it is deemed his coercion, and not her
own voluntary act. Yet, if she do in his absence, and,
by his mere command, she is then punishable as if she
were sole. — R. v. Morris, R. & R. 270 ; jR. v. Robson,
L, & C. 93.
Husband and wife were jointly indicted for stealing.
The husband was in the employ of the prosecutors, and
was seen near the spot when the property stolen arrived
at the prosecutor's. The next day, the wife was seen
near the spot where her husband was engaged on his
work. She was at a place where there was no road,
with a bundle concealed, and was followed home. On
the following day, she pledged the stolen property at
two different places. At one of the places, where she
was not known, she pledged it in a false name. Held,
that, upon this evidence, the wife might be convicted of
stealing the property. — R. v. Cohen, 11 Cox, 99.
The doctrine of coercion, as applicable to a crime com-
mitted by a married woman in the presence of her hus-
band, only raises a disputable presumption of law in her
favor, which is, in all cases, capable of being rebutted
by the evidence : this disputable presumption of law ex-
ists in misdemeanors as well as in felonies, and the ques-
tion for the jury is the same in both cases ; the doctrine
in question applies to the crime of robbery with violence
LARCENY. 255
Semble ; where a man and woman are indicted together
for a joint crime, and it appears from the evidence foT the
prosecution that they had lived together for seme months
as husband and wife, having with them an infant who
passed as their child, it is not necessary for the woman to
give evidence of her marriage in order to entitle her to
the benefit of the doctrine of coercion, although the indict-
ment does not describe her as a married woman. — R. v.
Torpey, 12 Cox, 45.
2. — THE CARRYING AWAY.
To constitute larceny, there must be a carrying away,
asportation, as well as a taking. The least removing of
the thing taken from the place where it was before is suf-
ficient for this purpose, though it be not quite carried off.
And, upon this ground, the guest, who, having taken
off the sheets from his bed, with an intent to steal them,
carried them into the hall, and was apprehended before he
could get out of the house, was adjudged guilty of larceny.
So, also, was he, who, having taken a horse in a close, with
an intent to steal him, was apprehended before he could
get him out of the close. And such was the case of him
who, intending to steal plate, took it out of the trunk
wherein it was, and laid it on the floor, but was surprised
before he could remove it any further. — 2 East, P. C. 555 ;
3 Burn, 214. Or if a servant, animo fur audi, take his
master's hay from his stable, and put it into his master's
waggon. — R. v. Gmncell, 9 C. & P. 365.
H. was indicted for stealing a quantity of currants,
which were packed in the forepart of a waggon. The pris-
oner had laid hold of this parcel of currants, and had got
near the tail of the waggon with them, when he was appre-
hended ; the parcel was afterwards found near the middle
256 LARCENY.
of the waggon. On this case being referred to the twelve
judges, they were unanimously of opinion that, as the pris-
oner had removed the property from the spot where it was
originally placed, with intent to steal, it was a taking and
carrying away. — Coslett's Case, 2 East, P. C. 556.
Prisoner had lifted up a bag from the bottom of a boot
of a coach, but was detected before he had got it out ; it did
not appear that it was entirely removed from the space it
at first occupied in the boot, but the raising it from the
bottom had completely removed each part of it from the
space that specified part occupied : Held, that this was a
complete asportation. — R. v. Walsh, 1 Moo. C. C. 14.
The offence of simple larceny is complete, if the defen-
dant drew a book from the inside pocket of the prosecu-
tor's coat about an inch above the top of the pocket, though
the prosecutor then suddenly putting up his hand, the
defendant let the book drop, and it fell back into the prose-
cutor's pocket. — R. v. Thompson, 1 Moo. C. C. 78.
& On the other hand, a mere change of position of the
goods will not suffice to make out a carrying away. So,
where W. was indicted for stealing a wrapper and some
pieces of linen cloth, and it appeared that the linen was
packed up in the wrapper in the common form of a long
square, which was laid length-way in a waggon, and that
the prisoner set up the wrapper on one end in the waggon
for the greater convenience of taking the linen out, and
cut the wrapper all the way down for that purpose, but
was apprehended before he had taken anything ; all the
judges agreed that this was no larceny, although his inten-
tion to steal was manifest. For a carrying away, in order
to constitute felony, must be a removal of the goods from
the place where they were ; and the felon, must, for the
instant at least, have the entire and absolute possession of
them.— R. v. Cherry, 2 East, P. C. 556.
LARCENY. 257
So, where one had his keys tied to the strings of his
purse in his pocket, which W. attempted to take from
him, and was detected with the purse in her hand ; but
the strings of the purse still hung to the owner's pocket
by means of the keys ; this was ruled to be no asportation.
— Wilkinson's case, 1 Leach, 321.
So in another case, where A. had his purse tied to his
girdle, and B. attempted to rob him : in the struggle, the
girdle broke, and the purse fell to the ground, B. not hav-
ing previously taken hold of it, or picked it up afterwards,
it was ruled to be no taking. — 1 Hale, 533.
Upon an indictment for robbery, the prisoner was found
to have stopped the prosecutor as he was carrying a fea-
ther bed on his shoulders, and told him to lay it down, or
he would shoot him ; on which the prosecutor laid the bed
on the ground, but the prisoner was apprehended before he
could take it up so as to remove it from the spot where it
lay, the judges were of opinion that the offence was not
complete. — Farrell's case, 2 East, P. C. 557.
Where the prisoner, by means of a pipe and stopcock •
turned off the gas belonging to a company before it came
into the meter, and so consumed the gas, it was held that
there was a sufficient severance of the gas in the entrance
pipe to constitute an asportavit. — R. v. White, 1 Bears.
& B. 203.
The same principle was upheld in R. v. Firth, 11 Cox,
234; see post, under section 202 of the Procedure Act.
In the cases cited before the two last preceding, a
verdict of guilty of an attempt to commit the offence
charged could now be given, under section 183 of the
Procedure Act.
If the thief once take possession of the thing, the offence
is complete, though he afterwards return it. — 3 Bum, 215.
S
258 LARCENY.
Where it is one continuing transaction, though there be
several distinct asportations in law by several persons, yet
all may be indicted as principals, who concur in the felony
before the final carrying away of the goods from the virtual
custody of the owner; 2 East, P. C. 557; and if several
persons act in concert to steal a man's goods, and he is
induced by fraud to trust one of them, in the presence of
the others, with the possession of the goods, and another
of them entice him away, that the man who has his goods
may carry them off, all are guilty of felony ; the receipt by
one is a felonious taking by all. — R. v. Standley, R. & R.
305.
And where property which the prosecutors had bought,
was weighed out in the presence of their clerk, and deli-
vered to their carter's servant to cart, who let other persons
take away the cart, and dispose of the property for his
benefit jointly with that of the other persons, it was held,
that the carter's servant, as well as the other persons, was
guilty of larceny at common law. — R. v. Harding, R. &
R. 125.
3. THE GOODS TAKEN.
The property taken must, to constitute larceny at com-
mon law, be personal property, and of some intrinsic
value, though it need not be of the value of some coin
known to the law. — R. v. Morris, 9 C. & P. 349; 3
Burn, 216 ; R. v. Walker, 1 Moo. C. C. 155.
Things real, or which savour of the realty, choses in
action, as deeds, bonds, notes, etc., cannot be the subject
of larceny, at common law.
But now, for these, see the Larceny Act, post ; as to
larceny of stamps, see sec. 2. Larceny Act.
No larceny, at common law, can be committed of such
LARCENY. 259
animals in which there is no property, either absolute or
qualified ; as of beasts that are feme aaturce and unre-
claimed. But if they are reclaimed or confined, or are
practically under the care and dominion of the prosecutor
and may serve for food, it is otherwise.
So young pheasants, hatched by a hen, and under the
care of the hen in a coop, although the coop is iu a field at
a distance from the dwelling-house, and although the
pheasants are designed ultimately to be turned out and to
become wild, are the subject of larceny. — B. v. Cory, 10
Cox, 23.
Partridges were reared from eggs by a common hen ;
they could fly a little, but still remained with the hen as
her brood, and slept under her wings at night, and from
their inability to escape were practically in the power and
dominion of the prosecutor : Held, that they were the
subject of larceny at common law — R. v. Shickle, 11 Cox,
189.
The prisoner was indicted for stealing one dead par-
tridge, and the proof was that the partridge was wounded,
but was picked up or caught by the prisoner while it was
alive but in a dying state : Held, that the indictment was
not proved. — R. v. Roe, 11 Cox, 554.
Eabbits were netted, killed, and put in a place of de-
posit, viz : a ditch, on the land of the owner of the soil on
which the rabbits were caught, and some three hours after-
wards the poachers came to take them away, one of whom
was captured by gamekeepers who had previously found
the rabbits, and lay in wait for the poachers : Held, that
this did not amount to larceny — R. v. Townley, 12
Cox, 59. Water in the pipes of a company may be the
subject of larceny. — Ferens v. O'Brien, 15 Cox, 332.
The flesh of such animals as are ferce naturae may be
260 LARCENY.
the subject of larceny. In B. v. Gallears, 1 Den. 501,
the prisoner was indicted for stealing a ham. The prisoner
objected that it did not appear by the indictement that the
article stolen was the subject of larceny ; that it might
have been the ham of an animal ferce naturce, a wild
boar, for instance, which had been stolen. Upon a case
reserved the objection was overruled. " I don't under-
stand the objection/' said Patteson, J. ll Supposing it
turned out on proof to be the ham of a wild boar, why
should the prisoner be at liberty to take it from the prose-
cutor without becoming criminally liable ? The doctrine
respecting the description of animals in an indictment
applies only to live animals, not to parts of the carcasses
of animals when dead, such as a boar's head. Do you find
in works on natural history that there is any living
animal called a ham V
See the Larceny Act, 'post, as to larceny of pigeons,
oysters, animals of different species, etc.
4. THE OWNER.
The goods taken, to constitute larceny, must be the pro-
perty of another person, and not of the party taking them.
But it has been seen, ante, that the owner, in certain cases,
may commit larceny of his own goods.
See post, under head " Indictment."
5. — AGAINST OWNER'S CONSENT.
The taking must be against the will of the owner. The
primary inquiry to be made is, whether the taking were
invito domino, that is to say, without the will or appro-
bation of the owner ; for this is of the very essence of
larceny and its kindred offence, robbery. — 3 Burn, 218.
But where a servant, being solicited to become an
LABCENY. 261
accomplice in robbing his master's house, informed his
master of it, and the master thereupon told him to carry
on the affair, consented to his opening the door leading to
the premises, and to his being with the robbers during the
robbery, and also marked his property, and laid it in a
place where the robbers were expected to come : it was
holden, that this conduct of the master was no defence to
an indictment against the robbers. — See Bishop, 1 Or. L.
262, and 2 Or. L. 811.
An indictment charged the stealing of " nineteen shil-
lings in money " of the moneys of A. B. It appeared that
A. B. got into a merry-go-round at a fair, and handed the
prisoner a sovereign in payment for the ride, asking her
to give change. The prisoner gave A. B. eleven pence,
and said she would give the rest when the ride was
finished. After the ride was over the prisoner said A. B.
only gave her one shilling, and refused to give her the
nineteen shillings change : Held, that the prisoner could
not be convicted upon this indictment of stealing nineteen
shillings.— R. v. Bird, 12 Cox, 257.
B. making a purchase from the prisoner, gave him half
a sovereign in mistake for a six pence. Prisoner looked
at it and said nothing but put it into his pocket. Soon
afterwards B. discovered the mistake, and returned and
demanded the restoration of the half sovereign. Prisoner
said " all right, my boy ; I'll give it to you," but he did
not return it, and was taken into custody : Held, not to be
a larceny. — R. v. Jacobs, 12 Cox, 151. Obtaining money
from any one by frightening liim, is larceny. — R. v. LoveU,
8 Q. B. D. 185.
6. — THE FELONIOUS INTENT.
The taking and carrying away must, to constitute lar- i
262 LARCENY.
ceny, be with a felonious intent entertained at the time
of the taking.
Felony is always accompanied with an evil intention,
and, therefore, shall not be imputed to a mere mistake or
misanimadversion : as where persons break open a door
in order to execute a warrant which will not justify such
a proceeding : for in such case there is no felonious inten-
tion.— 1 Hawkins, 142.
For it is the mind that make the taking of another's
goods to be felony, or a bare tresspass only ; but, because
the variety of circumstances is so great, and the complica-
tion thereof so mingled, that it is impossible to prescribe
all the circumstances evidencing a felonious intent or the
contrary, the same must be left to the due and attentive
consideration of the judge and jury : wherein, the best
rule is, in doubtful matters, rather to incline to acquittal
than conviction. Only, in general, it may be observed,
that the ordinary discovery of a felonious intent is, the
party doing it secretly, or, being charged with the goods,
denying it. — 1 Hale, 509.
And if goods be taken on claim of right or property in
them, it -will be no felony ; at the same time, it will be
matter of evidence whether they were, bond fide, so taken,
or whether they were not taken from the person actually
possessing them, with a thievish and felonious intent, and
therefore, obtaining possession of goods by a fraudulent
claim of right, or by a fraudulent pretence of law, and
then running* away with them, would be a felony. — 1
Hale, 507. Lemott's case and Farre's case, Kelyng's,
C. C, 64, 65, reprint by Stevens and Haynes.
The prisoner had set wires, in which game was
caught. The prosecutor, a game - keeper, took them
away for the use of the lord of the manor, while the
LABCENY. 263
prisoner was absent. The prisoner demanded his wires
and game, with menaces, and under the influence of fear
the prosecutor gave them up. The jury found that the
prisoner acted under a band fi.de impression that the
game and wires were his property, and that he merely,
by some degree of violence, gained possession of what
he considered his own. It was held no robbery,
there being no animus furandi. — R. v. Hall, 3 C. <£ P.
409.
And where a letter, directed to J. 0. at St. Martin's
Lane, Birmingham, inclosing a bill of exchange drawn
in favor of J. O., was delivered to the defendant, whose
name was J. 0. and who resided near St. Martin's Lane,
Birmingham ; but, in truth, the letter was intended for
a person of the name of J. 0. who resided in New Hall
Street ; and the prisoner, who, from the contents of the
letter, must have known that it was not intended for him,
applied the bill of exchange to his own use; the judges
held that it was no larceny, because at the time when the
letter was delivered to him, the defendant had not the
animus furandi. — R. & Mucklow, IMoo. C. C. 160;
And to constitute larceny, the intent must be to deprive
the owner, not temporarily, but permanently, of his
property. R. v. Phillips, 2 East, P. C. 662; Archbold,
326 ; 3 Burn, 220. But see past, sect. 85 of the Larceny
Act, and remarks thereon. — See R. v. Hemmings, 4 F.
& F. 50.
Money was given to the prisoner for the purpose of
paying turnpike tolls at two gates on his journey.
Twelve days afterwards, on being asked if he had paid
the toll at one of the gates, the prisoner said he had not,
that he had gone by a parish road which only crossed the
road at that gate, and so no toll was payable there, and
264 LARCENY.
that he had spent the money on beer for himself and his
mates. The prisoner having been convicted of larceny of
the money, but it not appearing on a case reserved as to
whether the facts proved a larceny, and that the ques-
tion of felonious intention had been distinctly left to the
jury, the Court quashed the conviction. — R. v. Deering, 11
Cox, 298.
In all cases of larceny, the questions whether the defen-
dant took the goods knowingly or by mistake ; whether
he took them bond fide under a claim of right or other-
wise, and whether he took them with an intent to return
them to the owner, or to deprive the owner of them alto-
gether, and to appropriate and convert them to his own use,
are questions entirely for the consideration of the jury, to
be determined by them upon a view of the particular facts
of the case. — 1 Leach. 422 ; 3 Burn, 224.
Upon an indictment for larceny, it appeared that the
prisoner had been instructed by the wife of the prosecutor
to repair an umbrella. After the repairs were finished,
and it had been returned to the prosecutor's wife, a dis-
pute arose as to the bargain made. The prisoner there-
upon carried away the umbrella as a security for the
amount alleged by him to be due for repairing it. Black-
burn, J., left it to the jury to say whether the taking by
the prisoner was an honest assertion of his right, or only a
colorable pretence to obtain possession of the umbrella:
verdict, not guilty. — R. v. Wade, 11 Cox, 549.
A depositor in a post office savings bank obtained a war-
rant for the withdrawal of ten shillings, and presented it
with his depositor's book to a clerk at the post office, who
instead of referring to the proper letter of advice for ten
shillings, referred by mistake to another letter of advice for
eight pounds, sixteen shillings and ten pence, and placed
LARCENY. 265
that sum upon the counter. The clerk entered eight pounds,
sixteen shillings and ten pence in the depositor's book as
paid, and stamped it. The depositor took up that sum and
went away. The jury found that he had the animus
furandi at the moment of taking the money from the
counter, and that he knew the money to be the money of
the postmaster general when he took it up, and found him
guilty of larceny. Held, by a majority of the judges, that
he was properly convicted of larceny. Per Cockburn, C. J.,
Blackburn, Mellor, Lush, Grove, Denman and Archibald,
J. J., that the clerk and therefore, the postmaster general,
having intended that the property in the money should
belong to the prisoner through mistake, the prisoner know-
ing of the mistake, and having the animus furandi at the
time, was guilty of larceny. Per Bovill, C. J., Kelly, C. B.,
and Keating, J., that the clerk, having only a limited autho-
rity under the letter of advice, had no power to part with
the property in the money to the prisoner, and that there-
fore, the conviction was right. Per Pigott, B., that, before
possession of the money was parted with, and while it was
on the counter, the prisoner had the animus furandi,
and took it up, and was therefore guilty of larceny. Per
Martin, B., Bramwell, B., Brett, J., and Cleasby, B., that
the money was not taken invito domino, and therefore
that there was no larceny. Per Bramwell, B., and Brett,
J., that the authority of the clerk authorized the parting
with the possession and property in the entire sum laid
down on the counter. — R. v.Middleton, 12 Cox, 260, 417.
Larceny by finding. — If a man lose goods, and another
find them, and, not knowing the owner, convert them to
his own use, this has been said to be no larceny, even
although he deny the finding of them, or secrete them.
But the doctrine must be taken with great limitation, and
266 LARCENY.
can only apply where the finder bond fide supposes the
goods to have been lost or abandoned by the owner, and
not to a case in which he colors a felonious taking under
that pretence. — Archbold, 330 ; R. v. Kerr, 8 C. & P.
176 ; R. v. Reed, 0. & M, 306 ; R. v. Peters, 1 0. & K.
245 ; R. v. Mole, IC.&K. 417.
The true rule of law resulting from the authorities
on the subject has been pronounced to be that - if a man
find goods that have been actually lost, or are reason-
ably supposed by him to have been lost, and appropriates
them, with intent to take the entire dominion over them,
really believing, when he takes them, that the owner can-
not be found, it is not larceny ; but, if he takes them with
the like intent, though lost, or reasonably supposed to be
lost, but reasonably believing that the owner can be found,
it is larceny." — R. v. Thurbom, 1 Den. 388; R. v. Dixon,
Bears. 580; R. v. Christopher, Bell, C. C. 27.
In R. v. Moore, L. & C. 1, on an indictment for steal-
ing a bank note, the jury found that the prosecutor
had dropped the note in the defendant's shop ; that
the defendant had found it there ; that at the time
he picked it up he did not know, nor had he reason-
able means of knowing, who the owner was ; that he after-
wards acquired knowledge who the owner was, and after
that converted the note to his own use ; that he intended,
when he found the note, to take it to his own use and
deprive the owner of it, whoever he was ; and that he
believed, when he found it, that the owner could be found.
It was held that upon these findings the defendant was
rightly convicted of larceny. It is to be observed that in
the last mentioned case, although the prisoner at the time
he found the bank note did not know, nor had reasonable
means of knowing who the owner was, yet that he did
LABCENY. 267
believe at the time of the finding that the owner could be
found. — Archbold, 330.
The case of R. v. Olyde, 11 Cox, 103, shows that the
belief by the prisoner at the time of the finding of the
chattel that he could find the owner is a necessary ingre-
dient in the offence, and that it is not sufficient that he
intended to appropriate the chattel at the time of finding
it, and that he acquired the knowledge of who the owner
was before he converted it to his own use. In that case,
the prisoner found a sovereign on the highway, believing
it had been accidentally lost ; but, nevertheless, with a
knowledge that he was doing wrong, he at once determined
to appropriate it, notwithstanding it should become known
to him who the owner was. The owner was speedily made
known to him, and the prisoner refused to give up the
sovereign. There was, however, no evidence that he be-
lieved, at the time of finding the sovereign, that he could
ascertain who the owner was, and the prisoner was, there-
fore, held not guilty of larceny.
In B. v. Deavesf 11 Cox, 227, the facts were, that the
prisoner's ehild, having found six sovereigns in the street,
brought them to the prisoner, who counted them and told
some bystanders that the child had found a sovereign. The
prisoner and the child then went down the street to the
place where the child had found the money, and found a
half-sovereign and a bag. On the same evening, about two
hours after the finding, the prisoner was told that a woman
had lost money, upon which the prisoner told her informant
to mind her own business, and gave her half a sovereign.
It was held by the majority of the Irish Court of Criminal
Appeal, that this case could not be distinguished from It.
v. Glyde, supra ; that there was nothing to show that at
the time the child brought her the money, the prisoner
268 LARCENY.
knew the property had an owner, or, at all events, to show
that she was under the impression that the owner could be
found, and that, therefore, the conviction of the prisoner for
larceny must be quashed.
Prisoner received from his wife a ten pound Bank of
England note, which she had found, and passed it away.
The note was endorsed " E. May " only, and the prisoner,
when asked to put his name and address on it by the person
to whom he passed it, wrote on it a false name and address.
When charged at the police station, the prisoner said he
knew nothing about the note. The jury were directed
that, if they were satisfied that the prisoner could, within
a reasonable time, have found the owner, and if instead of
waiting, the prisoner immediately converted the note to his
own use, intending to deprive the owner of it, it would be
larceny. The prisoner was convicted, but, upon a case
reserved, it was held that the conviction was wrong, and
that the jury ought to have been asked whether the pris-
oner, at the time he received the note, believed the owner
could be found. — R. v. Knight, 12 Cox, 102.
It is clearly larceny if the defendant, at the time he
appropriates the property, knows the owner; and, therefore>
where a bureau was given to a carpenter to repair, and he
found money secreted in it which he kept and converted to
his own use, it was holden to be larceny. — 2 Leach, 952.
So if a hackney coachman convert to his own use a par-
cel left by a passenger in his coach by mistake, it is felony
if he knows the owner, or if he took him or set him down
at any particular place, where he might have inquired for
hiin.—iZ. v. Wynne, 2 East, P. C. 664 ; R. v. Lear, 1
Leach, 415; Archbold, 331.
So, in every case, where the property is not, properly
speaking, lost, but only mislaid, under circumstances which
LAKCEXY. 269
would enable the owner to know where to look for and find
it, as where a purchaser at a stall of the defendant in a
market left his purse on the stall, the person who fraudu-
lently appropriates property so mislaid is guilty of larceny.
—R. v. West, Dears. 402.
And in every case, in which there is any mark upon the
property by which the owner may be traced, and the finder,
instead of restoring the property, converts it to his own use,
such conversion will amount to larceny. — R. v. Pope, 6
C. & P. 346; R. v. Mole, 1 C. & K. 417; R. v. Preston,
2 Den. 353 ; Archbold, 331.
Doing an act openly doth not make it the less a felony,
in certain cases. 3 Burn, 223. So, where a person came
into a seamstress's shop, and cheapened goods, and ran
away with the goods out of the shop, openly, in her sight,
this was adjudged to be a felony. — Chiser's Case, T.
Raym. 276.
Returning the goods will not purge the offence, if the
prisoner took them originally with the intent of depriving
the owner of them, and of appropriating them to his own
use. In R. v. Trebilcock, Dears. & B. 453, the jury
found the prisoner guilty, but recommended him to mercy,
"believing that he intended immediately to return the
property : " Held, that the conviction was right : the
recommendation of the jury is no part of the verdict
The felonious quality consists in the intention of the
prisoner to defraud the owner, and to apply the thing stolen
to his own benefit or use. — 2 Starkie on Evid. 606.
The intent need not be lueri causa. — 3 Burn, 2 24 ;
R. v. Mortit, R. & R. 307; R. v. OrunceU, 9 C. & P. 365 ;
R. v. Handley, 1 C. <t- M. 547 ; R. v. Privet*,, 1 Den.
193 ; R. v. Jones, 1 Den. 188 ; R. v. Cabbage, R. & R.
292.
2 70 LARCENY.
■ The English courts seem to have overthrown the old
notion of lucri causa." "Will it be contended, asked
Pollock, C. B., that picking a man's pocket, not to make
yourself rich, but to make him poor, would not be a
larceny?" — R. v. Jones, 1 Den. 188; 2 Bishop, Cr. L.
486.
Possession of stolen property recently after its loss, if
unexplained is presumptive evidence that the party in,
possession stole it. Such presumption will, however, vary,
according to the nature of the property stolen, and whether
it be or not likely to pass readily from hand to hand. — R. v.
Partridge, 7 C. & P. 551 ; 3 Burn, 225 ; Archbold, 235.
Prisoner was found with dead fowls in his possession, of
which he could give no account, and was tracked to a fowl
house where a number of fowls were kept, and on the floor
of which were some feathers corresponding with the fea-
thers of one found on the prisoner, from the neck of which
feathers had been removed. The fowl-house, which was
closed over night, was found open in the morning, The
spot where the prisoner was found was twelve hundred
yards from the fowl-house, and the prosecutor, not knowing
the number of fowls kept, could not swear that he had lost
any : Held, that there was evidence to support a conviction
for larceny. — R. v. Mookford, 11 Cox, 16.
On the first floor of a warehouse, a large quantity of
pepper was kept in bulk. The prisoner was met, coming
out of the lower room of the warehouse, where he had no
business to be, having on him a quantity of pepper of the
same kind as that in the room above. On being stopped,
he threw down the pepper, and said, " I hope you will not
be hard with me." From the large quantity in the ware-
house, it could not be proved that any pepper had been taken
from the bulk. It was objected that, as there was no direct
LARCENY. 271
proof that any pepper had been stolen, the judge was bound
to direct an acquittal, but the Court of Criminal Appeal
held that there was evidence to warrant a conviction. —
R v. Burton, 6 Cox, 293.
Indictment. — The form of indictment for simple larceny,
as given in Archbold, 313, is as follows :
The Jurors for Our Lady the Queen upon their oath
present, that J. S., on three pairs of shoes, and one
waistcoat, of the goods and chattels of J. X., feloniously did
steal, take and carry away, against the peace of Our Lady
the Queen, her crown and dignity.
If the defendant has been guilty of other distinct acts of
stealing, not exceeding three, committed by him against the
same person within the space of six calendar months, one.
or two other counts, as the case may be, in the following
from, may be added, under sect. 134 of the Procedure Act
And the Jurors aforesaid, upon their oath aforesaid, do
further present, that the said J. S. afterwards, and within
the space of six calendar months from the time of the
committing of the said offence in the first count of this
indictment, charged and stated, to wit, on six silver
teaspoons, of the goods and chattels of the said J. N.,
feloniously did steal, take and carry away ; against the
form of the statute in such case made and provided.
As to the punishment for simple larceny, see sects, 5
and 86 of the Larceny Act, post
It is not necessary to allege the value of the property
stolen, except where the value is of the essence of the
offence, or has any bearing on the punishment, as by sect,.
86 of the Larceny Act, where an additional punishment is
decreed, in cases where the value of the property stolen
exceeds two hundred dollars. But some value must be
proved at the trial. — 2 Russ. 344.
272 LARCENY.
By sect. 195 of the Procedure Act, if upon the trial of
any person indicted for larceny, it be proved that the
defendant took the property in such manner as to amount
in law to embezzlement, he shall not by reason thereof be
entitled to be acquitted, but the jury may return as their
verdict that the defendant is not guilty of larceny but is
guilty of embezzlement. See this section and remarks
under it, post.
And by section 198 of the Procedure Act, see post, if
upon the trial of any person for larceny, it appears that the
offence proved amounts to an obtaining by false pretences,
the jury may return as their verdict that the defendant is
not guilty of larceny, but is guilty of obtaining by false
pretences.
Also, by section 201 of the Procedure Act, if upon the
trial of any person for larceny, the jury are of opinion that
such person is not guilty of larceny, but are of opinion
that he is guilty of an offence against the sec. 85 of the
Larceny Act, they may find him so guilty.
But if the jury find a verdict of larceny, where the
facts prove an embezzlement, or an obtaining by false
pretences, or an offence against section 85 of the Larceny
Act, the conviction is illegal. — R. v. Oorbutt, Dears. &
B. 166 ; the offence found by the jury must be the offence
proved.
By section 183 of the Procedure Act, if, on the trial of
any person charged with any felony or misdemeanor it
appears to the jury, upon the evidence, that the defendant
did not complete the offence charged, but that he was
guilty only of an attempt to commit the same, the jury
may return as their verdict that the defendant is not guilty
of the offence charged, but is guilty of an attempt to commit
the same.
LARCENY. 273
As to the venue, in indictments for larceny, etc., see
sections 10, 11, 12, 16, 20, 21, 22, of the Procedure Act.
The time stated in the indictment need not be proved as
laid; if the offence be proved to have been committed at
any time before or after, provided it be some day before the
finding of the indictment, it will be sufficient. See sect.
128 of the Procedure Act.
The goods stolen must be proved to be the absolute or
special property of the person named in the indictment.
But any variance between the indictment and the evidence,
in this respect, as well as in the description of the property
stolen, may now be amended.
An indictment charged the prisoner with stealing nine-
teen shillings and six pence in money of the prosecutor. At
the trial, it was objected that there was no case, for the
evidence showed that if the prisoner was guilty of stealing
anything, it was of stealing a sovereign. Thereupon the
court amended the indictment by striking out the words
" nineteen shillings and six pence " and inserting in lieu
thereof "one sovereign." The jury found the prisoner guilty
of stealing a sovereign. Upon a case reserved, the judges
held that the court had power so to amend under 14-15
V., c. 100, s. 1, (sect, 238 of the Procedure Act).— R. v.
Gumble, 12 Cox, 248; R. v. Marks, 10 Cox, 167.
See section 117 of the Procedure Act, as to cases where
property need not be laid in any person.
See sections 118 and 119 of the said Procedure Act,
as to stating the ownership, in cases of partnerships, joint-
tenancies, or joint stock companies ; also sections 120, 121,
122 of the said Act as to the statement of the ownership
in certain other cases, and sections 129 and 130 as to the
description of instruments and money in indictments.
Where goods are stolen out of the possession of the
T
274 LARCENY.
bailee, they may be described in the indictment as the pro-
perty of the bailor or of the bailee ; but where a bailor
steals his own goods from the bailee, they must be described
as the goods of the bailee. — Archbold, 321, 322.
Prisoner was charged with stealing a mare, the property
of E. The evidence was that prosecutor, in presence of
the prisoner, agreed to buy of W. a mare for five pounds,
and that W. assented to take a cheque for the five pounds.
The prosecutor afterwards sent prisoner to W. with the
cheque, and direction to take the mare to Bramshot farm.
On the next day, prisoner sold a mare to S., which he said
he had bought for five pounds. When charged before
the magistrate with stealing E.'s mare, he said he sold the
mare to S., with the intention of giving the money to E.,
but that he got drunk : Held, that that was sufficient evi-
dence on which a jury might find that the mare sold to S.
was the property of E. — R. v. King, 12 Cox, 134.
Prosecutor bought a horse, and was entitled to the
return of ten shillings chap money out of the purchase
money. Prosecutor afterwards, on the same day, met the
seller, the prisoner, and others together in company, and
asked the seller for the ten shillings, but said he had no
change, and offered a sovereign to the prosecutor, who
could not change it. The prosecutor asked whether any
one present could give change : the prisoner said he could,
but would not give it to the seller of the horse, but would
give it to the prosecutor, and produced two half-sovereigns.
The prosecutor then offered a sovereign of his own with
one hand to the prisoner, and held out the other hand for
change. The prisoner took the sovereign and put one
half-sovereign only into the prosecutor's hand, and slipped
the other into the hand of the seller, who refused to give
it to the prosecutor, and ran off with it : Held, that the
LA.RCENT. 275
indictment rightly charged the prisoner with stealing a
sovereign. — R. v. Twist, 12 Cox, 509.
W. let a horse on hire for a week to C, who fetched
the horse every morning from W.'s stable, and returned
it after the day's work, was done. The prisoner went to
C. one day, just as the day's work was done, and fraudu-
lently obtained it from him, by saying falsely "I have
come for W.'s horse ; he has got a job on, and wants it as
quickly as possible." The same evening, the prisoner was
found three miles off with the horse by a constable, to
whom he stated that it was his father's horse, and that he
was sent to sell it : Held, that the prisoner was rightly
convicted of larceny on an indictment, alleging the property
of the horse to be in W. — R. v. Kendall, 12 Cox, 598.
By section 135 of the Procedure Act, post, it is lawful
to add a count or several counts for feloniously receiving
the stolen property to any indictment for larceny, and
vice versd. And it is deemed more prudent always to do
so. And where a prisoner is charged with stealing and
receiving, the jury may convict of receiving, though the
evidence might have warranted a verdict of guilty as
principal in the second degree. — R. v. Hilton, Bell. C. C.
20 ; R. v. Langinead, L. & C. 427 ; and Greaves' rernarks
upon it, 3 Russ. 668.
See sees. 21 and 22 of the Procedure Act as to venue
in certain cases ; sec. 25 as to arrest without warrant of
any person found committing any offence against the
Larceny Act; sec. 52 as to search warrants; sec. 125 as
to indictments for stealing postal cards, stamps, etc. ; sec.
127 as to indictments for stealing by lodgers ; sees. 134
and 135 as to joinder of offences; sees. 195, 196, 198,
199, 201, 202 as to verdict in certain cases ; sees. 250 and
251 as to restitution of stolen property.
276 LARCENY.
To obtain money by the trick known as " ringing the
changes" is larceny. — R. v. Hollis, 15 Cox, 345.
A. was indicted for larceny under the following
circumstances : — R., intending to lend A. a shilling, hand-
ed him a sovereign, believing it to be a shilling. A., when
he received the sovereign, believed it to be a shilling, and did
not know until subsequently that it was not a shining.
Immediately A. became aware that it was a sovereign,
and although he knew that R. had not intended to part
with the possession of a sovereign, but only with the
possession of a shilling, and although he could easily have
returned the sovereign to R., fraudulently appropriated it
to his own use. Prisoner convicted of larceny. Upon a
case reserved, seven judges held the conviction right, and
seven were of opinion that these facts did not constitute
larceny. — R. v. Ashwell, 16 Cox, 1.
In jR. v. Flowers, 16 Cox, 33, held, that where money
or goods have been innocently received, a subsequent
fraudulent appropriation will not render the receiver guilty
of larceny, the above lastly cited case not being an au-
thority to the contrary.
A declaration made by a prisoner tried on an indictment
for larceny, before he was charged with the crime in
answer to a question asked him where he got the property,
is evidence on his behalf.
On the trial of an indictment for larceny of a watch, the
prisoner's counsel called a witness, W., who stated that
the prisoner was drinking at a public house on the evening
when the alleged offence was committed, and had the
watch with him ; that W. went home with the prisoner,
and they sat down in the house ; that while they where
sitting there the prisoner fell upon the floor and the watch
fell out of his pocket, and W. picked it up and asked him
LARCENY. 277
where he got it. His answer to this question was rejected.
The prisoner being convicted, it was held by the couit on
a case reserved, that the evidence should have been
received, and the conviction was quashed. — The Queen v.
Ferguson, 3 Pugs. (K B.) 612.
H. and W. were jointly indicted for stealing. H. was
found guilty, but the jury could not agree as to W. and
were discharged from giving a verdict as to him. Held,
that the verdict warranted the conviction of H. — The
Queen v. Hamilton and Walsh, 23 N. B. Rep. 540.
CHAPTER 164.
AN ACT RESPECTING LARCENY AND SIMILAR
OFFENCES.
H
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
SHORT TITLE.
1. This Act may be cited as • The Larceny Act."
INTERPRETATION.
2. In this Act, unless the context otherwise requires, —
(a) The expression "document of title to goods " includes any bill
of lading, India warrant, dock warrant, warehousekeeper's certificate,
warrant or order for the delivery or transfer of any goods or valuable
thing, bought and sold note, or any other document used in the ordi-
nary course of business as proof of the possession or control of goods,
authorizing or purporting to authorize, either by endorsement or by
delivery, the possessor of such document to transfer or receive any
goods thereby represented or therein mentioned or referred to;
(6.) The expression "document of title to lands" includes any
deed, map, paper or parchment, written or printed, or partly written
and partly printed, being or containing evidence of the title, or any
part of the title, to any real property, or to any interest in any real
property, or any notarial or registrar's copy thereof, or any duplicate
instrument, memorial, certificate or document authorized or required
by any law in force in any part of Canada, respecting registration of
titles, and relating to such title ;
(c.) The expression " trustee " means a trustee on some express
trust created by some deed, will or instrument in writing, or a trustee
of persona! property created by parol, and includes the heir or per-
sonal representative of any such trustee, and every other person upon
or to whom the duty of such trust has devolved or come, and also an
executor and administrator, and an official manager, assignee, liqui-
dator or other like officer acting under any Act relating to joint stock
companies, bankruptcy or insolvency, and any person who is, by the
law of the Province of Quebec, an " administrateur ; " and the
expression " trust," includes whatever is by that law an " adminis-
tration; "
LARCENY. 279
(d.) The expression " valuable security'' include? any order, exche
quer acquittance or other security whatsoever, entitling or evidencing
the title of any person or body corporate to any share or interest in
any public stock or fund, whether of Canada or of any Province
thereof, or of the United Kingdom, or of Great Britain or Ireland, or
of any British colony or possession, or of any foreign state, or in any
fund of any body corporate company or society, whether within
Canada or the United Kingdom, or any British colony or possession,
or in any foreign state or country, or to any deposit in any savings
bank or other bank, and also includes any debenture, deed, bond,
bill, note, warrant, order or other security whatsoever, for money or
for payment of money, whether of Canada or of any Province thereof,
or of the United Kingdom, or of any British colony or possession, or
of any foreign state, and any document of title to lands or goods as
hereinbefore denned, and any stamp or writing wbich secures or
evidences title to or interest in any chattel personal, or any release,
receipt, discharge, or other instrument evidencing payment of money,
or the delivery of any chattel personal ; and every such valuable
security shall, where value is material, be deemed to be of value
equal to that of such unsatisfied money, chattel personal, share,
interest or deposit, for the securing or payment of which, or delivery
or transfer or sale of which, or for the entitling or evidencing title to
which, such valuable security is applicable, or to that of such money
or chattel personal, the payment or delivery of which is evidenced by
such valuable security ;
(e.) The expression " property " includes every description of real
and personal property, money, debts and legacies, and all deeds and
instruments relating to or evidencing the title or right to any property,
or giving a right to recover or receive any money or goods, and also
not only such property as was originally in the possessi or under
the control of any person, but also any property into or for which the
same has been converted or exchanged, and anything acquired by
euch conversion or exchange, whether immediately or otherwise,
and also any postal card, postage stamp or other stamp issued or
prepared for issue by the authority of the Parliament of Canada, or
of the Legislature of any Province of Canada, for the payment of any
fee, rate or duty whatsoever, and whether still in the possession of
the Crown, or of any person or corporation, or of any officer or agent
of the Government of Canada, or of the Province by the authority of
the Legislature whereof it was issued or prepared for issue ; and such
postal card or stamp shall be held to be a chattel, and to be equal in
value to the amount of the postage, rate or duty which can be paid
by it, and is expressed on its face in words or figures, or both ;
280 LARCENY.
(f.) The expression u cattle " includes any horse, mule, ass, swine,
sheep or goat, as well as any neat cattle or animal of the bovine
species, and whatever is the age or sex of the animal, and whether
castrated or not, and by whatever technical or trivial name it is
known, and shall apply to one animal as well as to many ;
(g.) The expression " banker" includes any director of any incor-
orated bank or banking company ;
(A.) The expression "writing" includes any mode in which and
any material on which words or figures at length or abridged are
written, printed or otherwise expressed, or any map or plan is
inscribed ;
(i.) The expression " testamentary instrument" includes any will
codicil or any other testamentary writing or appointment, as well
during the life of the testator whose testamentary disposition it pur-
ports to be, as after his death, whether the same relates to real or
personal property, or both ;
(j.) The expression " municipality " includes the corporation of
any city, town, village, township, parish or other territorial or local
division of any Province of Canada, the inhabitants whereof ar»
incorporated or have the right of holding property for any purpose ;
(&.) The night shall, for the purpose of this Act, be deemed to
commence at nine of the clock in the evening of each day, and to
conclude at six of the clock in the morning of the next succeeding
day, and the day shall include the remainder of the twenty-four
hours ;
(Z.) Whenever the having anything in the possession of any person
is in this Act expressed to be an offence, then if any person has any
such thing in his personal custody or possession, or knowingly or
wilfully has any such thing in any dwelling-house or other building,
lodging, apartment, field or other place, open or inclosed, whether
belonging to or occupied by himself or not, and whether such matter
or thing is so had for his own use or benefit or for that of another,
such person shall be deemed to have such matter or thing in his cus-
tody or possession within the meaning of this Act, and if there are
two or more persons, any one or more of whom, with the knowledge
and consent of the rest, has any such thing in his or their custody or
possession, it shall be deemed and taken to be in the custody and
possession of all of them.— 32-33 V., c. 21, s. 1 . 35 V., c.33, s. I, part.
40 V., c. 29, s. 1. 24-25 V., c. 96, s. 1, Imp.
LARCENY. 281
SIMPLE LARCENY.
3. Every larceny, whatever is the value of the property stolen,
Bhall be deemed to be of the same nature, and shall be subject to the
eame incidents in all respects as grand larceny was before the distinc-
tion between grand and petit larceny was abolished. — 32-33 V-, e. 21,
s. 2. 24-25 V., c. 96, s. 2, Imp.
Grand larceny was when the value of the thing stolen
•was above twelve pence; petit larceny, when the thing
stolen was of the value of twelve pence or under. This
distinction was abolished in England, on the 21st day of
June, 1827.
LARCENY BY BAILEES.
4. Every one who, being a bailee of any chattel, money or valuable
security, fraudulently takes or converts the same to his own use or to
the use of any person other than the owner thereof, although he does
not break bulk or otherwise determine the bailment, is guilty of
larceny, and may be convicted thereof upon an indictment for larceny ;
but this section shall not extend to any offence punishable on sum-
mary conviction.— 32-33 F., c. 21, s. 3. 24-25 V., c. 96, *. 3, Imp.
See R. v. Macdonald, 15 Cox, 757, 15 Q. B. D. 323.
Greaves, on this clause, remarks : " Although there is
no doubt that a person might have been convicted of any
offence within this clause on a common indictment
for larceny, R. v. Haigh, 7 Cox, 403, as it expressly
enacts that the offender ' shall be guilty of larceny,' yet
to prevent all doubt, it is provided (by the Consolidated
Act) that the offender may be convicted on an indictment
for larceny. It was held, that the bailment intended by
the 20-21 V., c. 54, s. 4, was a deposit of something
which was itself to be returned ; and therefore a person
with whom money had been deposited, who was under
an obligation to return the amount, but not the identical
coin deposited, was held not to be a bailee of the money
within that section. — R. v. Hassall, L. & G. 58. The
282 LARCENY.
object of this clause was simply to make those cases
larceny, where the general property in the thing deliv-
ered was never intended to be parted with at all, but
only the possession ; where in fact the owner delivered
the property to another under such circumstances as
to deprive himself of the possession for some time,
whether certain or uncertain, and whether longer or
shorter, at the expiration or determination of which time
the owner was to have restored to him the very same
thing that had been so delivered. In order, therefore,
to bring a case within this clause, in addition to the
fraudulent disposal of the property, it must be proved,
1st. That there was such a delivery of the property as
to divest the owner of the possession, and vest it in the
prisoner for some time. 2nd. That at the expiration or
determination of that time, the identical same property
was to be restored to the owner. Proof of these facts
will be all that is necessary under this clause. The
decision in R. v. Hassall was clearly right, and will apply
to the present clause."
The prisoner was a married woman living with her
husband. They took in lodgers, but she exclusively had
to deal with them. The prosecutor, who lodged with
them, delivered to the prisoner, the woman, a box con-
taining money to be taken care of. The prisoner stole
the money, her husband being entirely innocent in the
transaction. Held, that she was either guilty of simple
larceny, or that she was a bailee, and guilty of larceny
as a bailee, and by Pollock, C.B., and Martin, B., that a
married woman may possibly be convicted of larceny as
a bailee.— R. v. Robson, L. & G. 93. The authority of R.
v. Denmour, 8 Cox, 440, in which it was held that a
married woman could not be a bailee, must be regarded
as shaken. — Reporter's note, L. <& C. 97.
LARCENY. 283
The proviso, says Greaves, was introduced to prevent
the clause applying to the cases of persons employed in
the silk, woollen, and other manufactures, who dispose
of goods entrusted to them, and are liable to be sum-
marily convicted under sundry statutes.
Who is a bailee What constitutes a bailment
* Bailment " (French, bailler), a compendious expression
to signify a contract resulting from delivery. Sir William
Jones has defined bailment to be " a delivery of goods on
a condition, express or implied, that they shall be restored
by the bailee to the bailor, or according to his directions
as soon as the purpose for which they are bailed shall be
answered." He has again in the closing summary of his
essay defined it in language somewhat different, as " a
delivery of goods in trust, on a contract express or implied,
that the trust shall be duly exercised and the goods
redelivered, as soon as the time or use for which they were
bailed shall have elapsed or be performed." Each of
these definitions seems redundant and inaccurate, if it be
the proper office of a definition to include these things
only which belong to the genus or class. Both of these
definitions suppose that the goods are to be restored or
re-delivered. But in a bailment for sale, as in the case
of a consignment to a factor, no re-delivery is contem-
plated between the parties. In some cases, no use is con-
templated by the bailee, in others it is of the essence of
the contract ; in some cases time is material to terminate
the contract ; in others, time is necessary to give a new
accessorial right. Mr. Justice Blackstone has defined a
bailment to be " a delivery of goods in trust upon a con-
tract expressed or implied, that the trust shall be faith-
fully executed on the part of the bailee." And in another
place as a "delivery of goods to another person for a
284 LARCENY.
particular use." It may perhaps be doubted, whether,
although generally true, a faithful execution, if by faith-
ful be meant a conscientious diligence or faithfulness,
adequate to a due execution, or a particular use, if by use
be meant an actual right of user by the bailee, constitutes
an essential or proper ingredient in all cases of bailment.
Mr. Chancellor Kent, in his commentaries, has blended,
in some measure, the definitions of Jones and Blackstone.
Without professing to enter into a minute criticism, it
may be said that a bailment is a delivery of a thing in
trust for some special object or purpose, and upon a con-
tract express or implied to conform to the object or pur-
pose of the trust. In the celebrated case of Goggs v.
Bernard, Lord Raym. 909, 1 Smith's L. C. 177, Lord
Holt divided bailments thus :
1. Bepositum, or a naked bailment of goods, to be kept
for the use of the bailor.
2. Commodatum, where goods or chattels that are use-
ful are lent to the bailee gratis, to be used by him.
3. Locato rei, where goods are lent to the bailee to be
used by him for hire.
4. Vadium, pawn or pledge.
5. Locatio operis faciendi, where goods are delivered
to be carried, or something is to be done about them, for a
reward to be paid to the bailee,
6. Mandatum, a delivery of goods to somebody, who
is to carry them, or do something about them gratis.
— Wharton, law lexicon. See also R. v. Oxenham, 13
Cox, 349.
A carrier who receives money to procure goods obtains
and duly delivers the goods, but fraudulently retains
the money, is within this section. — R. v. Wells, 1 F.
& F. 109.
LARCENY. 285
So one who takes a watch from the pocket of a tipsy man
with his consent is a bailee of the watch. — R. v. Reeves, 5
Jwrm X. £.716.
The bailment intended is a deposit of something to be
specifically returned, and therefore one who receives money
with no obligation to return the identical coins received is
not a bailee within the section. — R. v. Hassall, L. <£ C,
58 ; R. v. Garratt, 2 F. <k F. 14 ; R. v. Eoare, 1 F. dfr F.
647. See R. v. de Banks, 15 Cox, 450.
The prosecutor gave the prisoner money to buy half a
ton of coals for him. He bought the coals and took a
receipt in his own name, and used his own horse and cart
to fetch them, but on the way home he appropriated a
portion of the coals to his own use, and afterwards pre-
tended to the prosecutor that he had delivered to him the
full quantity : Held, that even if it was necessary to show
a specific appropriation of the coals to the prosecutor, there
was sufficient evidence of such appropriation, and that the
prisoner was rightly convicted of larceny as a bailee. — R.
v. Buakall, L. & C. 371; 9 Cox, 419.
A carrier employed by the prosecutor to deliver in his,
the prisoner's, cart a boat's cargo of coals to persons named
in a list, to whom only he was authorized to deliver them,
and having fraudulently sold some of the coals, and appro-
priated the proceeds, is properly convicted of larceny as a
bailee. — R. v. Davies, 10 Cox, 239.
A., who was a trustee of a friendly society, was appointed
by a resolution of the society to receive money from the
treasurer and carry it to the bank. He received the money
from the treasurer's clerk, but instead of taking it to the
bank he applied it to his own purposes. He was indicted
for stealing, as bailee of the money of the treasurer, and
also for a common law larceny. The 18-19 V., c. 63, s.
286 LAKCENY.
18, vests the property of friendly societies in the trustees,
and directs that in all indictments the property shall be
laid in their names : Held, that A. could not be convicted
either as a bailee or of a common law larceny. — R. v.
Loose, Bell, C. C. 259 ; 8 Cox, 302.
On an indictment for larceny as a bailee, it appeared
that the prisoner borrowed a coat from the prosecutor,
with whom he lodged, for a day, and returned it. Three
days afterwards he took it without the prosecutor's per-
mission, and was seen wearing it by him, and he again
gave him permission to wear it for the day. Some few
days afterwards, he left the town, and was found weariog
the coat on board a ship bound for Australia. Martin, B.,
stopped the case, stating that in his opinion there was no
evidence of a conversion. There are many instances of
conversion sufficient to maintain an action of trover, which
would not be sufficient to support a conviction under this
statute ; the determination of the bailment must be some-
thing analogous to larceny, and some act must be done
inconsistent with the purposes of the bailment. As for
instance, in the case of a bailment of an article of silver for
use, melting it would be evidence of conversion. So when
money or a negotiable security is bailed to a person for safe
keeping, if he spend the money or convert the security, he
is guilty of a conversion within the statute. The prose-
cution ought to find some definite time at which the offence
was committed. The taking the coat on board ship was
subsequent to the prisoner's going on board himself. — R.
v. Jackson, 9 Cox, 505.
Greaves, on this case, says : If the case is correctly
reported it deserves reconsideration. The words are, " take
or convert the same to his own use." The clause therefore
does not require a conversion, but was studiously framed
LARCENY. 287
to avoid the necessity of proving one. The evidence was
sufficient to go to the jury that the prisoner took the coat
on board for his own use with intent permanently to deprive
the owner of it ; and such a case seems clearly within the
statute. Besides the case ought to have been left to the
jury to say whether he did not return the coat to the pros-
ecutor's house after the end of the last bailment for a day.
If so the case was simply one of larceny. — 3 Russ. 666.
hL was the owner of a wrecked ship. A. contracted with
M. to save and recover the wrecked property. A. made a
sub-contract with R. C. to act as diver and carry on the
works of salvage ; all goods saved to be forwarded to A.,
and the remuneration to be a percentage on the goods
saved, but R. C. always to retain £150 as a guarantee.
In his absence, R. C. put the defendant, his son, in charge
of the wreck. The defendant corresponded with A. as to
the sale of the salvage, and he was addressed by A. as a
responsible party under the contract. A. deposed, however,
that he had always considered R. C. as the party liable on
the contract. The defendant sold and appropriated part of
the salvage. The jury found that he did so anirno furandi,
but no question was asked them as to whether he was a
bailee of A. Held, dissentient ibus, Fitzgerald and George,
J. J., that there was sufficient evidence to show that the
defendant was a bailee so as to make him liable for larceny
under the 4th section of the Larceny Act ; also that the
property was rightly laid in M. — E. v. Clegg, 11 Cox, 212.
A. delivered two brooches to the prisoner to sell for him
at .£200 for one, and £115 for the other, and the prisoner
was to have them for a week for that purpose; but two or
three days grace might be allowed. After ten days had
elapsed, the prisoner sold them with other jewellery for
£250, but arranged with the vendee that he might redeem
288 LARCENY.
the brooches for .£110 before September. Held, that this
amounted to a fraudulent conversion of the brooches to his
own use by a bailee, within sec. 4 of the Larceny Act. —
JR. v. Henderson, 11 Cox, 593.
A traveller was entrusted with pieces of silk, about 95
yards each, to carry about with him for sale to such cus-
tomers as he might procure. It was his duty to send by
the next post after sale the names and adresses of the cus-
tomers to whom any might have been sold, and the num-
bers, qualities and prices of the silk sold. All goods not
so accounted for remained in his hands, and were counted
by his employers as stock. At the end of each half year
it was his duty to send in an account for the entire six
months, and to return the unsold silk. He was paid by a
commission. Within six months after four pieces of silk
had been delivered to him, the prisoner rendered an account
of the same, and entered them as sold to two persons,
with instructions to his employers to send invoices to the
alleged customers. It turned out that this was false, and
that he had appropriated the silk to his own use : held,
on a case reserved, by the Court of Criminal Appeal
unanimously, that the prisoner was rightly convicted of
larceny as a bailee. — R. v. Richmond, 12 Cox, 495.
The prisoner found two heifers which had strayed, and
put them on his own marshes to graze. Soon afterwards
he was informed by S. that they had been put on his, S.'s,
marshes and had strayed, and a few days after that they
belonged to H. Prisoner left them on his marshes for a
day or two, and then sent them a long distance away on
his own property to be kept for him. He then told S. that
he had lost them, and denied all knowledge of them. The
jury found: 1. That at the time the prisoner found the
heifers, he had reasonable expectation that the owner could
LARCENY. 289
be found, and that he did not believe that they had been
abandoned by the owner. 2. That at the time of finding
them he did not intend to steal them, but that the inten-
tion to steal came on him subsequently. 3. That the pris-
oner, when he sent them away, did so for the purpose and
with the intention of depriving the owner of them and
appropriating them to his own use : Held, that a conviction
of larceny, or of larceny as bailee, could not be sustained
under the above circumstances. — R. v. Matthews, 12 Cox,
489 ; R. v. Conner, 1 3 Cox, 187.
The prisoner was frequently employed by the prosecutor
to fetch coals from C. Before each journey, the prosecu-
tor made up to the prisoner £24, out of which he was to
pay for the coals, keep 23 shillings for himself, and if the
price of the coal, with the 23 shillings, did not amount to
£24, to keep the balance in hand to the credit of the next
journey. It was the prisoner's duty to pay for the coal, as
he obtained it, with the money received from the prosecu-
tor ; and the prosecutor did not know but that he did so ;
but provided he was supplied with the coal, and not
required to pay more than the proper price for it, it was
immaterial to the prosecutor in what manner the prisoner
paid for it. On the 20th of March, the prisoner had a bal-
ance of £3 in hand, and the prosecutor gave him £21 to
make up £24 for next journey. The prisoner did not then
buy any coal, but fraudulently appropriated the money :
Held, that the conviction of the prisoner for larceny of the
£21 as a bailee was right. — R. v. Aden, 12 Cox, 512.
See R. v. Tonkinson, 14 Cox, 603; R. v. Wynn, 16 Cox,
231.
Boot and shoe manufacturers gave out to their workmen
leather and materials to be worked up, which were entered
in the men's books and charged to their debit The men
u
290 LARCENY.
might either take them to their own homes to work up, or
work them up upon the prosecutor's premises j but in the
latter case they paid for the seats provided for them. When
the work was done they received a receipt for the delivery
of the leather and materials and payment of the work. If
the leather and materials were not re-delivered, they were
required to be paid for. The prisoner Daynes was in the
prosecutor's employ, and received materials for twelve
pairs of boots ; he did some work upon them, but instead
of returning them sold them to the prisoner Warner. These
materials were entered in the prosecutor's books to Daynes'
debit, but omitted by mistake to be entered in Daynes1
book : Held, that Daynes could not be convicted of larceny
as a bailee, under the 3rd section of the Larceny Act, as
the offence of which he had been guilty was punishable
summarily under 13 Geo. 2, c. 8. — R. v. Daynes, 12 Cox,
514.
An indictment for larceny by a bailee may be in the gen-
eral form of indictment for larceny at common law ; and it
is not necessary to allege that the defendant is a bailee. —
3 Burn, 305.
The prisoner was indicted for larceny as a bailee of a
sum of money. The complainant produced a receipt taken
at the time of the deposit in the hands of the prisoner by
which it appeared that the deposit was " en attendant le
paiement qu'il pourrait faire d'une meme somme a R. A.
Benoit." Held, that this receipt implied that the prisoner
was to pay a similar sum, and not actually the same pieces
of money. That parol testimony could not be admitted to
vary the nature of the transaction. — R. v. Berthiaume,
10 L. N. 365.
5. Every one who commits simple larceny or any felony hereby
made punishable in the same manner as simple larceny is guilty of a
LARCENY. 291
felony, and, except in the cases hereinafter otherwise provided for, is
liable to seven years' imprisonment. — 32-33 V., c. 21, s. 4. 40 V., c.
29, s. 3. 24-25 V., c. 96, s. 4, Imp.
6. Every one who, having been convicted either summarily or
upon indictment of a felony, commits the offence of simple larceny,
is guilty of felony, and liable to ten years' imprisonment. — 32-33 V.,
c 21, s. 7. 24-25 V., c. 96, *. 7, Imp".
As to form of indictment and procedure in such cases,
see Procedure Act, sees. 139 and 207, corresponding to s.
116 of the Imperial Larceny Act.
STEALING CATTLE.
7. Every one who steals any cattle is guilty of felony, and liable to
fourteen years' imprisonmeut.— 32-33 P., c. 21, *. 10. 24-25 V., c 96,
8. 10, Imp.
See, ante, sect. 2, for the interpretation of the word
cattle.
Indictment. — The Jurors for Our Lady the Queen upon
their oath present, that J. S., on at one
horse of the goods and chattels of J. N. feloniously did
steal, take and lead away ; against the form (If the
indictment be for stealiny a bull or sheep, etc,, say * drive
away " instead of M lead away.'1 The indictment must
give the animal one of the descriptions mentioned in the
statute ; otherwise the defendant can be punished as for
simple larceny merely.) — R. v. Beaney, R. <fc R. 416 ;
Archbold, 349.
If a person go to au inn, and direct the ostler to bring
out his horse, and point out the prosecutor's horse as his,
and the ostler leads out the horse for the prisoner to
mount, but, before the prisoner gets on the horse's back,
the owner of the horse comes up and seizes him, the
offence of horse-stealing is complete. — R. v. Pitman, 2
C. <Sc P. 243.
292 LARCENY.
The prisoners enter another's stable at night, and take
out his horses, and ride them 32 miles, and leave them at
an inn, and are afterwards found pursuing their journey
on foot. On a finding by the jury that the prisoners took
the horses merely with intent to ride and afterwards leave
them, and not to return or make any further use of them,
held, trespass and not larceny. — R. v. Philipps, 2 East,
P. C. 662.
If a horse be purchased and delivered to the buyer, it
is no felony though he immediately ride away with it,
without paying the purchase money. — R. v. Harvey, 1
Leach, 467.
If a person stealing other property take a horse, not
with intent to steal it, but only to get off more conveniently
.with the other property, such taking of the horse is not a
felony. — R. v. Crump, 1 C. & P. 658.
Obtaining a horse under the pretence of hiring it for a
day, and immediately selling it, is a felony, if the jury find
the hiring was animo furandi. — R. v. Pear, 1 Leach,
212 ; R. v. CJiarlewood, 1 Leach, 409. It is larceny (at
common law) for a person hired for the special purpose
of driving sheep to a fair, to convert them to his own use,
the jury having found that he intended so to do at the
time of receiving them from the owner. — R. v. Stock, 1
Moo. G. C. 87. Where the defendant removed sheep from
the fold, into the open field, killed them, and took away the
skins merely, the judges held that removing the sheep from
the fold was a sufficient driving away to constitute larceny,
— R. v. Rawlins, 2 East, P. C. 617.
But it has been questioned, whether the merely re-
moving a live sheep for the purpose of killing it, with
intent to steal part of the carcase, was an asportation of
the live sheep, so as to constitute larceny of it. — R, v.
LAKCENY. 293
Williams, 1 Moo., C. C. 107.— See 2 Russ. 361, and R.
v. Yend, 6 C. & P. 176.
Any variance between the indictment and the proof, in
the description of the animal stolen, may now be amended.
Sect. 238 Procedure Act.— R. v. Gurable, 12 Cox, 248.
8. Every one who wilfully killa any animal, with intent to steal
the carcase, skin or any part of the animal so killed, is guilty of
felony, and liable to the same punishment as if he had been convicted
of feloniously stealing the same, provided the offence of stealing the
animal so killed would have amounted to felony. — 32-33 V., c. 21, s.
11. 24-25 F., ft 96,*. 11, Imp.
Indictment one sheep of the goods and chattels
of J. N. feloniously and wilfully did kill, with intent
feloniously to steal, take and carry away part of the carcase,
that is to say, the inward fat of the said sheep, against the
form
Cutting off part of a sheep, in this instance the leg>
while it is alive, with intent to steal it, will support an
indictment for killing with intent to steal, if the cutting
off must occasion the sheep's death. — R. v. Clay, R. & R.
387.
So on the trial of an indictment for killing a ewe with
intent to steal the carcase, it appeared that the prisoner
wounded the ewe by cutting her throat, and was then
interrupted by the prosecutor, and the ewe died of the
wounds two days after. It was found by the jury who
convicted the prisoner that he intended to steal the carcase
of the ewe. The fifteen judges held the conviction right.
— R. v. Sutton, 8 C. &P. 291. It is immaterial whether
the intent was to steal the whole or part only of the carcase.
— R. v. Williams, 1 Moo. C. C. 187.
9. Every one who steals any dog, or any bird, beast or other
animal ordinarily kept in a state of confinement or for any domestic
294 LABCENY.
purpose, or for any lawful purpose of profit or advantage not being
the subject of larceny at common law, or wilfully kills any such dog,
bird, beast or animal, with intent to steal the same, or any part
thereof, shall, on summary conviction, be liable to a penalty not
exceeding twenty dollars over and above the value of the dog, bird,
beast or other animal, or to one month's imprisonment with hard
labor ;
2. Every one who, having been convicted of any such offence either
against this or any other Act or Law, afterwards commits any offence
in this section mentioned, is liable to three months' imprisonment
with hard labor.— 32-33 V., c. 21, s. 12. 24-25 V., c 96, ss. 18-21,
Imp.
The words in Italics are not in the English Act.
10. Every one who unlawfully and wilfully kills, wounds or takes
any house-dove or pigeon under such circumstances as do not amount
to larceny at common law, shall, on summary conviction, be liable to
a penalty not exceeding ten dollars over and above the value of the
bird.— 32-33 V., c. 21, *. 13. 24-25 V.t c. 9ri, s. 23, Imp.
This clause does not extend to killing pigeons under a
claim of right. — Taylor v. Newman, 9 Cox, 314.
11. Every one who steals any oysters or oyster brood from any
oyster bed, laying or fishery, being the property of any other person,
and sufficiently marked out or known as such, is guilty of felony,
and liable to be punished as in the case of simple larceny ;
2. Every one who unlawfully and wilfully uses any dredge or net
instrument or engine whatsoever, within the limits of any oyster bed,
laying or fishery, being the property of any other person, and suffi-
ciently marked out or known as such, for the purpose of taking oysters
or oyster brood, although none are actually taken, or unlawfully and
wilfully with any net, instrument or engine, drags upon the ground of
any such fishery, is guilty of a misdemeanor, and liable to three
months' imprisonment;
3. Nothing in this section contained shall prevent any person from
fishing for or catching any floating fish within the limits of any oyster
fishery with any net, instrument or engine adapted for taking floating
fish only.— 32-33 V., c. 21, s. 14, part. 24-25 V., c. 96, s. 26, Imp.
Indictment for stealing oysters or oyster brood. —
from a certain oyster-bed called the pro-
LARCENY. 295
perty of J. N., and sufficiently marked out and known
as the property of the said J. N., one thousand oysters
feloniously did steal, take and carry away against the
form ,
Indictment for using a dredge in the oyster fishery of
another. — within the limits of a certain oyster-bed
called the property of J. N., and sufficiently marked
out and known as the property of the said J. N., unlaw-
fully and wilfully did use a certain dredge for the purpose
of then and there taking oysters, against the form
—Archbold, 393.
In support of an indictment for stealing oysters in a
tidal river, it is sufficient to prove ownership by oral
evidence as, for instance, that the prosecutor and his
father for 45 years had exercised the exclusive right of
oyster fishing in the lociis in quo, and that in 1846 an
action had been brought to try the right, and the verdict
given in favor of the prosecutor. — R. v. Downing, 11
Cox, 580.
See sec. 123 of the Procedure Act for form of indict-
ment.
STEALING WRITTEN INSTRUMENTS.
12. Every one who steals or, for any fraudulent purpose, destroys,
cancels, obliterates or conceals the whole or any part of any valuable
security, other than a document of title to lands, is guilty of felony,
of the same nature, and in the same degree, and punishable in tlie
6ame manner as if he had stolen any chattel, of like value as the
share, interest or deposit to which the security so stolen relates, or
as the money due on the security so stolen or secured thereby and
remaining unsatisfied, or as the value of the goods or other valuable
thing represented, mentioned or referred to in or by the security. —
32-3:5 V., c. 21, s. 15. 24-25 V., c. 96, *. 27, Imp.
See E. v. Scott, 21 L. C. J. 225, reversed by Supreme
Court, as follows :
296 LARCENY.
S. was indicted, tried and convicted for stealing a note
for the payment and value of $258.33, the property of
A., McC. and another. The evidence showed that the
promissory note in question was drawn by A., McC. and
C. B., and made payable to S.'s order. The said note
was given by mistake to S., it being supposed that the
sum of 1258.33 was due to him by the drawers, instead
of a less sum of $145.00. The mistake being imme-
diately discovered, S. gave back the note to the drawers,
unstamped and unindorsed, in exchange for another note
of $175.00. An opportunity occurring, S. afterwards, on
the same day, stole the note ; he caused it to be stamped,
indorsed it, and tried to collect it.
Held, that S. was not guilty of larceny of " a note "
or of a "valuable security," within the meaning of the
statute, and that the offence for which he was guilty was
not correctly described in the indictment. — Scott v. The
Queen, 2 8. C. R. 349.
As to the interpretation of the words " valuable secu-
rity," see, ante, sect. 2.
Indictment. — a certain valuable security,
other than a document of title to lands, to wit, one
bill of exchange for the payment of ten pounds, the
property of J. N., the said sum of ten pounds secured
and payable by and upon the said bill of exchange
being then due and unsatisfied to the said J. N., felo-
niously did steal, take and carry away, against the form
To constitute the offence it must be proved that the
defendant stole the bill as stated. Where the defendant,
a stockbroker, received from the prosecutor a cheque upon
his banker, to purchase exchequer bills for him, and
cashed the cheque, and absconded with the money, upon
LARCENY. 297
an indictment for stealing the cheque and the proceeds
of it, it was holden to be no larceny, although the jury-
found, that, before he received the cheque, the defendant
had formed the intention of converting the money to his
own use, not of the cheque, because the defendant had
used no fraud or contrivance to induce the prosecutor to
give it to him, and because being the prosecutor's own
cheque, and of no value in his hands, it could not be called
his goods and chattels, nor of the proceeds of the cheque,
because the prosecutor never had possession of them,
except by the hands of the defendant. — R. v. Walsh,
R. & R. 215. But where the prosecutors gave to the
defendant, who was occasionally employed as their clerk,
a cheque payable to a creditor, to be delivered by him to
the creditor, and he appropriated it to his own use, it
was holden by the judges to be a larceny of the cheque.
— R. v. Metcalfe, 1 Moo. C. 0.4:33; R. v. Heath, 2 Moo.
C. G. 33.
With respect to what instrument or security is within
the Act, the following decisions are cited :
At a conference of the judges in Easter term, 1781,
Nares, J., mentioned that a person was convicted before
him for privately stealing from the person of another a
pocket-book containing a note of the Bristol Bank, signed
by some one on behalf of himself and partners, promising
to pay to the prosecutor or order a sum of money, but
which the prosecutor had not indorsed. All the judges
were of opinion that this was a capital felony within the
statute, 2 Geo. 2, c. 25, which made the stealing promis-
sory notes felony, with the same consequence as goods of
the like purported value ; that this was a promissory note,
and that its not being indorsed was immaterial. — Anon,
2 East, P. C. 598.
298 LARCENY.
So an indictment for stealing a bill of exchange in Lon-
don was sustained by proof that, when found in the pris-
oner's possession there, it had an indorsement, made
afterwards and not laid in the indictment, for the addition
of a third name made no difference, it being the same bill
that was originally stolen. — Austin and King's Case, 2
East, P. C. 602.
When one was compelled by duress to make a promis-
sory note on stamped paper before prepared by the pris-
oner, who was present during the time, and withdrew
the note as soon as it was made, this was holden not to
be a felony within the statute. For according to some
of the judges, that is confined to available securities in
the hands of the party robbed, which this was not, being
of ho value while in the hands of the maker himself, yet
even if it were, according to others, this was never in his
possession, his signature having been procured by duress
to a paper which during the whole continuing transac-
tion was in possession of the prisoner. — Phipoe's Case, 2
Leach, 673. See now sec. 5, c. 173, post.
And where, in consequence of an advertisement, A.
applied to B. to raise money for him, who promised to
procure X5000, and produced ten blank 6 shillings stamps,
across which A. wrote an acceptance, and B. took them
up without saying anything, and afterwards filled up the
stamps as bills for £500 each, and put them in circula-
tion, it was holden by Littledale, Eolland and Bosanquet
that the stamps so filled up were not bills of exchange,
orders for the payment of money or securities for money
within the meaning of the statute, — R. v. Minter Hart,
6 C. &P. 106.
This offence would now be punishable under sect. 78,
post. R. v. Danger, Dears. & B. 307, would also now
fall under the said section.
LARCENY. 299
A cheque on a banker written on unstamped paper,
payable to D. F. G., and not made payable to bearer, is
not a valuable security, for it would be a breach in the
law for the bankers to pay it — R. v. Yates, 1 Moo. C.
C. 170.
The case of R. v. Clarke, R. & R. 182, where the
prisoner was indicted for stealing re-issuable notes after
payment and before re-issuing, does not decide whether
such notes were considered as valuable within the statute,
for the judges held the conviction right on the counts for
the value of the stamps and paper, not referring to the
objections as to the value of the note. But in R. v.
Ransom, 2 Leach, 1090, which was against a clerk in the
post-office for secreting a letter containing country bank-
notes paid in London and not re-issued, it was contended
that they were not available -within the Act, but the
majority of the judges thought otherwise, and as upon the
face of them they remained uncancelled, they would, in the
hands of a holder for a valuable consideration, be available
against the makers. And in the case of R. v. Vyse, 1
Moo. C. C. 218, it was decided that re-issuable notes, if they
cannot properly be called valuable securities whilst in the
hands of the maker, may be called goods and chattels.
Wherever, therefore, the instrument would, in the hands
of an innocent holder, be available against the maker,
such an instrument would, it is apprehended, be considered
of value. It may be worth while to consider, further,
whether the possession of the subject matter of the instru-
ment is not sufficient to bring the offender within the Act.
The object of the statute is to put the securities mentioned
therein upon the same footing as the money they repre-
sent. The property consists in the power of disposing ; if
therefore the power of disposal is taken away, the posses-
300 LARCENY.
sion and property are gone. The disposal of such property
is effected by means of those instruments ; every such act
of disposal, therefore, it is apprehended, must be consi-
dered as an exercise of property, and the making of such a
note, under any circumstances, an act of possession. If,
therefore, such a promissory note so obtained would be
accounted of value, and to have been in the possession
of the prosecutor, the offence would now, beyond doubt,
come within the section. — 3 Burn, 237-
In R. v. West, Dears. & B. 109, the case of R. v.
Ramson was relied on in the argument, and it appeared
that A. stole notes of a provincial bank which were not then
in circulation for value, but which were paid in at one
branch of the bank, and were in course of transmission to
another branch, in order to be re-issued ; but it was held
that, upon these facts, A. was rightly convicted.
The following instruments also have been held valuable
securities : a post office money order, R. v. Gilchrist, 2
Moo. C. G. 233 ; a cheque on a banker, R. v. Heath, 2
Moo. G. G. S3; a pawnbroker's certificate, R. v. Morrison,
Bell, G. G. 158 ; and a scrip certificate, of a foreign railway
company, R. v. Smith, Dears. 56.
It is to be observed that valuable security includes also
document of title to goods and document of title to lands,
see, ante, sect. 2, but that documents of title to lands are
especially exempted in this section. It is, therefore, mate-
rial, in drawing an indictment under this section, to show
the sort of valuable security in order to bring it within the
section ; and a variance between such description and the
evidence will be fatal, unless amended. — R. v. Lowrie,
L. R, 1 C. G. R. 61.
Bank notes are properly described as " money," although,
at the time of the larceny, they were not in circulation, but
LAECEXY. 301
were in the hands of the bankers themselves. — R. v.
West, 7 Cox, 183.
Halves of notes should be described as goods and chat-
tels.— R. v. Meagle, 4 C. & P. 535.
If the instrument is void as a security, as, for instance, '
by being unstamped, it should be described as a piece
of paper. — R. v. Pooley, R. & R. 12; i2. v. Perry, 1 Den,
69.
But where an executory contract was unstamped, it was
held not to be the subject of larceny, being merely evidence
of a chose in action ; and that the prisoner could not be
convicted on a count charging him with stealing a piece of
paper. — R. v. Watts, 6 Cox, 304.
An insufficient or defectively stamped promissory note,
the holder being ignorant of the defect in the stamping,
may be the subject of larceny as a valuable security under
32-33 V., c. 21, s. 15.— The Queen v. Deicitt, 21 N. B.
Rep. 17.
13. Every one who steals or, for any fraudulent purpose, destroys,
Cancels, ol literates or conceals the whole or any part of any document
of title to lands, is guilty of felony, and liable to three years' impris-
onment.—32-33 V., c 21, *. 16, part 24 25 V., c 96, *. 28, Imp.
As to form of indictment. See sec. 110 of Procedure
Act.
As to the interpretation of the words "document of
title to lands," see sec. 2, ante.
Indictment. — a certain deed, the property of J.
N., being evidence of the title of the said J. N. to a certain
real estate called in which said real estate the said
J. N. then had and still hath an interest, feloniously did
steal, take and carry away, against the form Arch-
bold, 357, (Add a second count, describing the nature
of the instrument more particularly.) It seems that in
302 LARCENY.
an indictment under this section, and the two following, for
destroying, etc., for a fraudulent purpose the purpose should
be stated.— R. v. Morris, 9 C. & P. 89.
A mortgage deed cannot be described as goods and chat-
tels.— R. v. Powell, 2 Den. 403. See sub-sec. 3 of next
section.
14. Every one who, either during the life of the testator or after
his death, steals or, for any fraudulent purpose, destroys, cancels,
obliterates or conceals the whole or any part of any will, codicil or
other testamentary instrument, whether the same relates to real or
personal property, or to both, is guilty of felony, and liable to impris-
onment for life ;
2. Nothing in this or the next preceding section mentioned, and no
proceeding, conviction or judgment had or taken thereupon, shall
prevent, lessen or impeach any remedy at law or in equity, which
any person aggrieved by any such offence might or would have had if
this Act had not been passed ;
3. No conviction of any such offender shall be received in evidence
in any action or suit against him ; and no person shall be liable to be
convicted of any of the felonies in this and the next preceding section
mentioned by any evidence whatever, in respect of any act done by
him, if he has, at any time previously to his being charged with such
offence, first disclosed such act, on oath, in consequence of any com-
pulsory process of any court, in any action, suit or proceeding bond
fide instituted by any person aggrieved, or if he has first disclosed the
same in any compulsory examination or deposition before any court
upon the hearing of any matter in bankruptcy or insolvency. — 32-33
V., c. 21, s. U,part. 24-25 V., c 96, s. 29, Imp.
Indictment — a certain will and testamentary
instrument of one J. N. feloniously did steal, take and
carry away, against the form Arcfibold. — (Add
counts varying description of the will, etc.)
The cases of R. v. Skeen, Bell, G. C. 97, and R. v. Stra-
han, 7 Cox, 85, are not now law. — Greaves, Cons. Acts, 126.
15. Every one who steals or, for any fraudulent purpose, takea
from its place of deposit, for the time being, or from any person
having the custody thereof, or unlawfully and maliciously cancels,
LAKCENY. 303
obliterate?, injures or destroys the whole or any part of any record,
writ, return, affirmation, recognizance, cognovit actionem, bill, peti-
tion, answer, decree, panel, process, interrogatory, deposition, affidavit,
rule, order or warrant of attorney, or of any original document what-
soever, of or belonging to any court of justice, or relating toaDy cause
or matter, begun, depending or terminated in any such court, or of
any original document in anywise relating to the business of any
office or employment under Her Majesty, and being or remaining in
any office appertaining to any court of justice, or in any government
or public office, is guilty of felony, and liable to three years' impris-
onment.—32-33 V., c. 21, s. 18, part. 24-25 V., c. 96, s. 30, Imp.
The words " court of justice " are not in the English
Act.
Indictment for stealing a record. — a certain
judgment-roll of the Court of Our Lady the Queen, before
the Queen herself, feloniously did steal, take and carry
away, against
Indictment for taking a record from its place of deposit.
— a certain judgment-roll of the court of our said
lady the Queen, before the Queen herself, from its place of
deposit for the time being, to wit, from the treasury of the
said court, feloniously and for a fraudulent purpose did
take, against (If for obliterating, etc., say, felo-
niously, unlawfully and maliciously did obliterate, etc.)
— Archbold, 354, 355.
Stealing rolls of parchment will be larceny at common
law, though they be the records of a court of justice, unless
they concern the realty. — R. v. Walker, 1 Moo. C.C. 155 ;
but it is not so if they concern the realty. — R. v. Westbeer,
1 Leach, 13.
A commission to settle the boundaries of a manor is an
instrument concerning the realty, and not the subject of
larceny at common law. — R. v. Westbeer, loc. cit.
Upon an indictment for taking a record from its place
of deposit, with a fraudulent purpose, the mere taking is
304 LARCENY.
evidence from which fraud may fairly be presumed, unless
it be satisfactorily explained. — Archbold, '655.
The prisoner was indicted under this section of the Lar-
ceny Act. The first count charged the prisoner with steal-
ing a certain process of a court of record, to wit, a certain
warrant of execution issued out of the county court of
Berkshire, in an action wherein one Arthur was plaintiff
and the prisoner defendant. The second count stated that
at the time of committing the offence hereinafter mentioned,
one Brooker had the lawful custody of a certain process of
a court of record, to wit, a warrant of execution out of the
county court that defendant intending to prevent
the due course of law, and to deprive Arthur of the rights,
benefits and advantages from the lawful execution of the
warrant, did take from Brooker the said warrant, he,
Brooker, having then the lawful custody of it. Brooker was
the bailiff who had seized the defendant's goods, under the
said writ of execution. The prisoner, a day or two after-
wards, forcibly took the warrant out of the bailiff's hand,
and kept it. He then ordered him away, as having no
more authority, and, on his refusal to go, forcibly turned
him out. The prisoner was found guilty, and the convic-
tion affirmed upon a case reserved. Cockburn, C. J., said :
" I think that the first count of the indictment which charges
larceny will not hold. There was no taking lucri causd,
but for the purpose of preventing the bailiff from having
lawful possession. Neither was the taking animo furandi.
I may illustrate it by the case of a man, who, wishing to
strike another person, sees him coming along with a stick
in his hand, takes the stick out of his hand, and strikes
him with it. That would be an assault, but not a felonious
taking of the stick. There is, however, a second count in
the indictment which charges in effect that the prisoner
LARCENY. 305
took the warrant for a fraudulent purpose. The facts show
that the taking was for a fraudulent purpose. He took the
warraut forcibly from the bailiff, in order that he might
turn him out of possession. That was a fraud against the
execution creditor, and was also contrary to the law. I am
therefore of opinion that it amounts to a fraudulent purpose
within the enactment, and that the conviction must be
affirmed."— R. v. Bailey, 12 Cox, 129.
Maliciously destroying an information or record of the
police court is a felony within 32-33 V., c. 21, s. 18. — R.
v. Mason, 22 U. C. C. P. 246.
An indictment describing an offence within 32-33 V., c
21, s. 18, as feloniously stealing an information taken in a
police court, is sufficient after verdict. — R. v. Mason, 22
u. a a p. 246.
16. Every one who steals any railway or steamboat ticket, or any
order or receipt for a passage on any railway or in any steamer or
other vessel, is guilty of felony, and liable to imprisonment for any
term less than two years. — 32-33 V-, c 21, s. 19.
This clause is not in the Imperial Statute.
STEALING THINGS ATTACHED TO OR GROWING ON LAND,
17. Every one who steals, or rips, cuts, severs or breaks, with intent
to steal, any glass or woodwork belonging to any building whatsoever,
or any lead, iron, copper, brass or other metal, or any utensil or
fixture, whether made of metal or other material, or of both, respec-
tively fixed in or to any building whatsoever, or anything made of
metal fixed in any land, being private property, or for a fence to any
dwelling-house, garden or area, or in any square or street, or in any
plase dedicated to public use or ornament, or in any burial ground, ia
guilty of felony, and liable to be punished as in the case of simple
larceny— 32-33 V., c. 21, *. 20, part. 24-25 V., c. 96, *. 31, Imp.
At common law, larceny could not be committed of
things attached to the freehold.
As to punishment for simple larceny, see, ante, sect. 5.
v
306 LARCENY.
This enactment extends the offenoe much further than
the prior acts did, as it includes all utensils and fixtures of
whatever materials made, either fixed to building or in
land, or in a square or street. A church, and indeed all
buildings are within the Act, and an indictment for
-stealing lead fixed to a certain building without further
description will suffice. — R, v. Parker, 1 East, P. C. 592 ;
R. v. Norris, R. & R., 69. An unfinished building boarded
on all sides, with a door and a lock, and a roof of loose
.gorse, was held a building within the statute. — R. v.
Worrald, 7 C. & P. 516. So also where the lead stoleti
formed the gutters of two sheds built of brick, timber and
tiles upon a wharf fixed to the soil, it was held that thig
was a building within the Act.— R. v. Rice, Bell, C. C. 87.
But a plank used as a seat, and fixed on a wall with pillars,
but with no roof, was held not to be a building. — R. v.
■Reece, 2 Russ. 254. Where a man, having given a
false representation of himself, got into possession of a
house, under a treaty for a lease of it, and then stripped it
of the lead, the jury being of opinion that he obtained
possession of the house with intent to steal the lead,
found him guilty, and he afterwards had judgment. — R.
v. Munday, 2 Leacfi, 850.
A prisoner, however, cannot, upon an indictment for
this statutable felony, be convicted of simple larceny.—
R. v. Gooch,8 C. dtP. 293.
The prisoners were found guilty of having stolen a
Copper sun-dial fixed upon a wooden post in a churchyard.
Conviction held right. — R. v. Janes, Dears. & B. 655.
The ownership of the building from which the fixture is
stolen must be correctly laid in the indictment. — 2 Rus8.
255.
/ 'Indictment for stealing metal fix^d in land being pri-
LARCENY. 307
vate property. — two hundred pounds weight of
iron, the property of J. N., then being fixed in a certain
land which was then private property, to wit, in a garden
of the said J. N., situate feloniously did steal, take
and carry away, against — Archbold.
18. Every one who steals, or cuts, breaks, roots up, or otherwise
destroys or damage*, with intent to steal, the whole or any part of
any tree, sapling or shrub, or any underwood, respectively growing in
any park, pleasure ground, garden, orchard or avenue, or in any
ground adjoining or belonging to any dwelling-house (in case the
value of the article or articles stolen or the amount of the injury
done, exceeds the sum of five dollars), is guilty of felony, and liable to
be punished as in the case of simple larceny;
2. Every one who steals, or cuts, breaks, roots up, or otherwise
destroys or damages, with intent to steal, the whole or any part of
any tree, sapling or shrub, or any underwood, respectively growing
elsewhere than in any of the situations in this section before men-
tioned (if the value of the article or articles stolen, or the amount of
the injury done, exceeds the sum of twenty-five dollars), is guilty of
felony, and liable to be punished as in the case of simple larcenv. —
32-33 V., c 21, *. 21. 24-25 V., c. 96, *. 32, Imp.
See sect. 5, ante, as to punishment for simple larceny.
The words " grounds adjoining" mean ground in active
contact with the dwelling-house. Whether the ground be
a park or garden, etc., is a question for the jury. It seems
it is not material that it should be in every part of it a
park or garden. — R. v. Hodges, M. & M. 341. The amount
of injury mentioned in this and the following section must
be the actual injury to the tree or shrub itself, and not the
consequential injnry resulting from the act of the de-
fendant.— R. v. Whiteman, Dears. 353. The respective
values of several trees, or of the damage thereto, may be
added to make up the £5, in case the trees were cut down,
or the damage done as part of one continuous transaction.
— R. v. Shepherd, 11 Cox, 119.
308 LAKCENY.
Indictment for stealing trees, etc., in parks, etc., of the
value above five dollars. — one oak tree of the value
of eight dollars, the property of J. N., then growing in a
certain park of the said J. N., situate in the said
park, feloniously did steal, take and carry away, against
— Archbold.
Indictment under second part of the section. —
one ash-tree of the value of thirty dollars, the property of
J. N., then growing in a certain close of the said J. N.,
situate in the said close, feloniously did steal, take
and carry away, against the form
It is not necessary to prove that the close was not a
park or garden, etc. — Archbold, 362.
19. Every one who steals, or cuts, breaks, roots up or otherwise
destroys or damages, with intent to steal, the whole or any part of
any tree, sapling or shrub, or any underwood, wheresoever the same
is respectively growing (the stealing of such article, or the injury
done, being to the amount of twenty-five cents at the least), shall, on
summary conviction, be liable to a penalty not exceeding twenty-five
dollars over and above the value of the article stolen or the amount
of the injury done ;
2. Every one who, having been convicted of any such offence,
either against this or any other act or law, afterwards commits any
of the said offences in this section before mentioned, shall, on sum-
mary conviction, be liable to three months' imprisonment with hard,
labor;
3. Every one who, having been convicted of any such offence
(whether both or either of such convictions have taken place before
or after the passing of this Act), afterwards commits any of the
offences in this section before mentioned, is guilty of felony, and liable
to be punished as in the case of simple larceny. — 32-33 V.,c 21, s. 22.
24-25 V., c. 96, s. 33, Imp.
Indictment. — The Jurors for Our Lady the Queen
upon their oath present, that J. S., on one oak
sapling of the value of forty cents, the property of J. N.,
then growing in certain land situate unlawfully did
1
LARCENY. 309
steal, take and carry away, against the form of the statute
in such case made and provided; and the jurors aforesaid,
upon their oath aforesaid, do say, that heretofore, and before
the committing of the offence herein before mentioned, to
wit, on at the said J. S. was duly convicted
before J. P., one of Her said Majesty's justices of her
peace for the said district of for that he, the said J.
S.: on (as in the first conviction) agaiustthe form
of the statute in such case made and provided ; and the
said J. S. was thereupon then and there adjudged, for his
said offence, to forfeit and pay the sum of twenty dollars,
over and above the value of the said tree so stolen as
aforesaid, and the further sum of forty cents, being the
value of the said tree, and also to pay the further sum of
for costs ; and in default of immediate payment of
the said sums, to be imprisoned in the common gaol of the
said district of for the space of unless the
said sums should be sooner paid. And the jurors aforesaid,
upon their oath aforesaid, do further say, that heretofore
and before the committing of the offence first hereinbefore
mentioned, to wit, on at the said J. S. was
duly convicted before 0. P., one of Her said Majesty's
justices of the peace for the said district of for
that he (setting out the second conviction in tJie
same manner as the first, and 'proceed thus.) And so, the
jurors aforesaid, upon their oath aforesaid, do say, that the
said J. S., on the day and year first aforesaid, the said oak
sapling of the value of forty cents, the property of the said
J. N., then growing in the said land situate felo-
niously did steal, take and carry away, against the form of
the statute in such case made and provided. — Archbold,
363 ; Greaves on sect. 116 of the Larceny Act, and 37 of
the Coin Act ; Archbold, 959 ; R. v. Martin, 11 Cox, 343.
310 LARCENY.
See sees. 139 and 207 of the Procedure Act as to form
of indictment and proceedings on trials when previous
offences are charged.
20. Every one who receives or purchases any tree or sapling, or
any timber made therefrom, exceeding in value the sum of ten dollars,
knowing the same to have been stolen or unlawfully cut or carried
away, is guilty of a misdemeanor, and liable to the same punishment
as the principal offender, and may be indicted and convicted thereof,
whether the principal offender has or has not been convicted, or is or
is not amenable to justice ;
2. Nothing in this or in either of the two sections next preceding
contained, and no proceeding, conviction or judgment had or taken
thereupon, shall prevent, lessen or impeach any remedy which any
person aggrieved by any of the said offences would have had if this
Act had not been passed ; nevertheless, the conviction of the offender
shall not be received in evidence in any action or suit against him ;
and no person shall be convicted of either of the offences aforesaid,
bj any evidence disclosed by him on oath, in consequence of the
compulsory process of a court, in any action, suit or proceeding
instituted by any person aggrieved. — 32-33 V., c 21, s. 23.
This clause is not in the English Act.
21. Every one who steals, cuts or breaks or throws down, with
intent to steal, any part of any live or dead fence, or any wooden post,
pale, wire or rail set up or used as a fence, or any stile or gate, or any
part thereof respectively, shall, on summary conviction, be liable to
a penalty not exceeding twenty dollars, over and above the value of
the article or articles so stolen, or the amount of the injury done ;
2. Every one who, having been convicted of any such offence,
either against this or any other Act or law, afterwards commits any
of the said offences in this section mentioned, shall, on summary
conviction, be liable to three months' imprisonment with hard labor.
—32-33 V., c 21, s. 24. 24-25 V., c. 96, s. 34, Imp.
22. Every one who, having in his possession, or on his premises
with his knowledge, the whole or any part of any tree, sapling or
shrub, or any underwood, or any part of any live or dead fence, or
any post, pale, wire, rail, stile or gate, or any part thereof, of the
value of twenty-five cents at the least, is taken or summoned before
a justice of the peace, and does not satisfy such justice that he came
LARCENY. 311
lawfully by the same, shall, on summary conviction, be liable to
a penalty not exceeding ten dollars, over and above the value of the
article so in his possession or on his premises.— 32-33 F-, c. 21, *• 25.
24-25 V., c. 96, s. 35, Imp.
This sect, does not apply to cordwood. — JR. v. Caswell,
33 U. C. Q. B. 303.
23. Every one who steals or destroys, or damages with intent to.
steal, any plant, root, fruit or vegetable production growing in anr
garden, orchard, pleasure ground, nursery ground, hot-house, green*,
house or conservatory, shall, on summary conviction, be liable to a
penalty not exceeding twenty dollars, over and above the value of the
article so stolen or the amount of the injury done, or to one month's
imprisonment, with or without hard labor;
2. Every one who, having been convicted of any such offence,
either against this or any other Act or law, afterwards commits any
of the offences in this section mentioned^ is guilty of felony and liable
to be punished as in the case of simple larceny. — 32-33 P., c. 21, s.
26. 24-25 V., c 96, t. 36, Imp.
The words plant and vegetable production do not apply
to young fruit trees. — R. v. Hodges, M. <fc M. 341. Steal-
ing trees would fall under sections 18 and 19.
Indictment. — The Jurors for Our Lady the Queen upon
their oath present, that J. S., on twenty pounds'
weight of grapes, the property of J. N\, then growing in a
certain garden of the said J. N., situate unlawfully
did steal, take and carry away, against the form of the
statute in such case made and provided ; and the jurors
aforesaid, upon their oath aforesaid, do say that, hereto-
fore, and before the committing of the offence hereinbefore
mentioned, to wit, on at the said J. S. was
duly convicted before J. P., one of Her Majesty's justices
of the said district of for that he, the said J. S.,
on (as in the previous conviction) against the form
of the statute in such case made and provided, and the
said J. S. was thereupon then and there adjudged for the.
312 LARCENY.
said offence to forfeit and pay the sura of twenty dollars,
over and above the amount of the article so stolen as
aforesaid, and the further sum of six shillings, being the
amount of the said injury; and also to pay the sum of ten
shillings for costs, and in default of immediate payment of
the said sums, to be imprisoned in for the space of
unless the said sum should be sooner paid, and so
the jurors aforesaid, upon their oath aforesaid, do say, that
the said J. S.? on the day and in the year first aforesaid,
the said twenty pounds' weight of grapes, the property of
the said J. N., then growing in the said garden of the said
J. N., situate feloniously did steal, take and carry
away, against the form of the statute in such case made
and provided. — Archbold.
24. Every one who steals or destroys, or damages, with intent to
steal, any cultivated root, or plant used for the food of man or beast,
or for medicine, or for distilling, or for dyeing, or for or in the course
Of any manufacture, and growing in any land, open or inclosed, not
being a garden, orchard, pleasure ground, or nursery ground, shall*
on summary conviction, be liable to a penalty not exceeding five
dollars, over and above the value of the article so stolen or the amount
of the injury done, or to one month's imprisonment with hard labor;
2. Every one who, having been convicted of any such offence, either
against this or any other act or law, afterwards commits any of the
offences in this section mentioned, is liable to three month's impris-
onment with hard labor.— 32-33 V., c. 21, s. 27. 24-25 V., c 96, s. 37,
Imp.
Clover has been held to be a cultivated plant, M. v.
Brunsby, 3 C. & K. 315 ; but it was doubted whether
grass were so. — Morris v. Wise, 2 F. & F. 51.
STEALING ORES OR MINERALS.
25. Every one who steals, or severs with intent to steal, ore of
any metal, or any quartz, lapis calaminaris, manganese, or mundic»
Or any piece of gold, silver or other metal, or any wad, black cawlk,
or black lead, or any coal, or cannel coal, or any marble, stone or
LAECEXY. 313
other mineral, from any mine, bed or vein thereof respectively, is
guilty of felony, and liable to imprisonment for any term less than
two years ;
2. No person shall be deemed guilty of any offence for having, for
the purpose of exploration or scientific investigation, taken any
specimen or specimens of any ore or mineral from any piece of ground
uninclosed and not occupied or worked as a mine, quarry or digging.
—32 33 V., c. 21, s. 28. 24-25 F., c 96, s. 38, Imp.
26. Every one who, being employed in or about any mine, quarry
or digging, takes, removes or conceals any ore of any metal, or any
quartz, lapis calaminaris, manganese, mundic, or any piece of gold,
silver or other metal, or any mineral found or being in such mine,
quarry or digging, with intent to defraud any proprietor of, or any
adventurer in the same, or any workman or miner employed therein,
is guilty of felony, and liable to imprisonment for any term less than
two years.— 32-33 V., c. 21, s. 29. 24-25 V., c. 96, s. 39, Imp.
The words "or any marble, stone, or other mineral,"
in sec. 25 are not in the English Act.
The words " or any piece of gold, silver or any other
metal" in sec. 26 are not in the English Act.
R. v. Webb, 1 Moo. G. C. 421 ; R. v. Holloway, 1 Den.
370 ; R. v. Poole, Dears. & B. 345, would now fall under
sect. 26. It must be alleged and proved that the ore was
stolen from the mine. — R. v. Trevenner, 2 M. & Rob. 476.
Indictment under sect. 25 twenty pounds' weight
of copper ore, the property of J. N., from a certain mine
of copper ore of the said J. N., situate feloniously
did steal, take and carry away, against the form
— Archbold.
Indictment under sect. 26 at being then
and there employed in a certain copper mine there situate,
called the property of feloniously did take
(or remove or conceal) fifty pounds' weight of copper ore
found in the said mine, with intent thereby then to defraud
the said —3 Burn, 313.
See sec. 124 of the Procedure Act as to form of indict-
ment for offence under sees. 25 to 29 of this Act.
314 LARCENY.
27. Every one who, being the holder of aay lease or license issued^
under the provisions of any Act relating to gold or silver mining, or
by any person owning land supposed to contain any gold or silver, by
any fraudulent device or contrivance, defrauds or attempts to defraud
Her Majesty, or any person, of any gold, silver or money payable or
reserved by such lease, or with such intent as aforesaid, conceals or
makes a false statement as to the amount of gold or silver procured
by him, is guilty of a misdemeanor, and liable to imprisonment for
any term less than two years. — 32-33 V., c. 21, s. 30.
28. Every one who, not being the owner or agent of mining claims'
then being worked, and not being thereunto authorized in writing by
the proper officer in that behalf, named in any Act relating to mines
in force in any Province of Canada, sells or purchases (except to or
from such owner or authorized person) any quartz containing gold,
or any smelted gold or silver, at or within three miles of any gold
district or mining district, or gold mining division, is guilty of a
misdemeanor, and liable to imprisonment for any term less than two
years.— 32-33 F., c. 21, s. 31.
29. Every one who purchases any gold in quartz, or any unsmelted
or smelted gold or silver, or otherwise unmanufactured gold or silver*
of the value of one dollar or upwards (except from such owner or
authorized person as in the next preceding section mentioned), and
does not, at the same time, execute in triplicate an instrument in
writing, stating the place and time of purchase, and the quantity,
quality and value of gold or silver so purchased, and the name or
uames of the person or persons from whom the same was purchased,
and file the same with the officer in the next preceding section men-
tioned, within twenty days next after the date of such purchase, is
guilty of a misdemeanor, and liable to a penalty not exceeding in
amount double the value of the gold or silver purchased, and to
imprisonment for any term less than two years. — 32-33 V., c- 21, s. 32.
30. The possession, contrary to the provisions of any law in that
behalf of any smelted gold or silver, or any gold-bearing quartz, or
any unsmelted or otherwise unmanufactured gold or silver, by any
operative, workman or laborer actively engaged in or on any mine, is
prima facie evidence that the same had been stolen by him. — 32-33
V., c. 21, s. 35.
See sec. 53 Procedure Act as to search warrants.
31. Every one who, with intent to defraud his co-partner, co-
adventurer, joint tenant or tenant in common, in any claim, or in any
LARCENY. 315
share or interest in any claim, secretly keeps back or conceals any
gold or silver found in or upon or taken from such claim, is guilty of
felony, and liable to be punished as in the case of simple larceny. —
32-33 V.} c. 21, s. 37.
The above five sections are not in the English Act.
STEALING FROM THE PERSON, AND OTHER LIKE OFFENCES.
32. Every one who robs any person, or steals any chattel, money
or valuable security from the person of another, is guilty of felony,
and liable to fourteen years' imprisonment. — 32-33 V., c 21, s. 39.
24-25 V., c. 96, *. 40, Imp.
On trial for robbery, conviction may be under next
clause. Sec. 192 Procedure Act.
33. Every one who assaults any person with intent to rob is guilty
of felony, and, except in cases where a greater punishment is provided
by this Act, liable to three years' imprisonment. — 32-33 V., c. 21, a.
41. 24-25 V., c. 96, *. 42, Imp.
Indictment for stealing from the person under sect.
32. — one watch, one pocket-book and one pocket
handkerchief of the goods and chattels of J. N., of
from the person of the said J. N. feloniously did steal,
take, and carry away, against the form — Archbold,
419.
The words " from the person of the said J. N." consti-
tute the characteristic of this offence, as distinguished from
simple larceny ; the absence of force, violence or fear dis-
tinguishes it from robbery.
The indictment need not negative the force or fear neces-
sary to constitute robbery ; and though it should appear
upon the evidence that there was such force or fear, the
punishment for stealing from the person may be inflicted.
—R. v. Robinson, R. & R. 321 ; R. v. Pearce, R. <k R.
174.
316 LARCENY.
To constitute a stealing from the person, the thing taken
must be completely removed from the person. Where it
appeared that the prosecutor's pocket-book was in the
inside front pocket of his coat, and the prosecutor felt a
hand between his coat and waistcoat attempting to get the
book out, and the prosecutor thrust his right hand down to
his book, and on doing so brushed the prisoner's hand ; the
book was just lifted out of the pocket an inch above the
top of the pocket, but returned immediately into the pocket ;
It was held by a majority of the judges that the prisoner
was not rightly convicted of stealing from the person,
because from first to last the book remained about the per-
son of the prosecutor, but the judges all agreed that the
simple larceny was complete. Of ten judges, four were of
opinion that the stealing from the person was complete. —
R. v. Thompson, 1 Moo. C. C. 78.
Where the prosecutor carried his watch in his waistcoat
pocket, fastened to a chain, which was passed through a
button-hole of the waiscoat, and kept there by a watch-key
at the other end of the chain ; and the defendant took the
watch out of the pocket, and forcibly drew the chain and
key out of the button-hole, but the point of the key caught
upon another button, and the defendant's hand being seized,
the watch remained there suspended, this was held a suffi-
cient severance. The watch was no doubt temporarily,
though but for a moment, in the possession of the prisoner.
— R. v. Simpson, Dears. 621. In this case, Jervis, C. J.
said he thought the minority of the judges in Thompson's
case, supra, were right.
Where a man went to bed with a prostitute, leaving his
watch in his hat, on the table, and the woman stole it whilst
he was asleep, it was held not to be stealing from the per-
LARCENY. 317
son, but stealing in the dwelling-house. — R. v. Hamilton,
8 C. & P. 49.
Upon the trial of any indictment for stealing from the
person, if no asportation be proved, the jury may convict
the prisoner of an attempt to commit that offence, under
sect. 183 of the Procedure Act.
In R. v. Collins, L. & C. 471, it was held that there
can only be an attempt to commit an act, where there,
is such a beginning as if uninterrupted would eud in the
completion of the act, and that if a person puts his hand
into a pocket with intent to steal, he cannot be found guilty
of an attempt to steal, if there was nothing in the pocket.
But Bishop, Cr. Law, Vol. 1, 741, censures this decision.
By sects. 47 and 48 of c. 162, attempting to procure abor-
tion is a crime, whether the woman be with child or
not. And rightly so; it is the criminal intent, the
mens rea, which deserves punishment. But why not
so for the other case ? What is the difference between
putting the hand into the pocket and nut finding there
anything to be removed, and penetrating to the womb,
and there finding no embryo or foetus, in the first case
to steal whatever may be in the pocket, in the second
case to destroy whatever there may be in the womb. —
Bishop, loc. cit.
Indictment for robbery under sect, 33. — in and
upon one J. N. feloniously did make an assault, and him
the said J. N., in bodily fear and danger of his life then
feloniously did put, and the moneys of the said J. N., to
the amount of ten pounds, from the person and against the
will of the said J. N. then feloniously and violently did
steal, take and carry away, against the form —
Archbold.
The indictment may charge the defendant with having
318 LAECENY.
assaulted several persons, and stolen different sums from
such, if the whole was one transaction. — Archbold.
The crime of robbery is a species of theft, aggravated by
the circumstances of a taking of the property from the
person or whilst it is under the -protection of the person
by means either of violence " or " putting in fear. — 4th
Rep. Cr. L. Commrs. LXVII.
Robbery is larceny committed by violence from the
person of one put in fear. — 2 Bishop, Or. Law. 1156.
This definition differs in the form of expression, though
not in substance, from what has been given by preceding
authors.
To constitute this offence, there must be : 1. A larceny
embracing the same elements as a simple larceny ; 2. vio-
lence, but it need only be slight, for anything which calls
out resistance is sufficient, or what will answer in place of
actual violence, there must be such demonstrations as put
the person robbed in fear. The demonstrations of fear must
be of a physical nature ; and 3. the taking must be from
what is technically called the " person," the meaning of
which expression is, not that it must necessarily be from
the actual contact of the person, but it is sufficient if it is
from the personal protection and presence.— Bishop, Stat.
Crimes, 517.
1. Larceny. — Robbery is a compound larceny, that is, it
is larceny aggravated by particular circumstances. Thus,
the indictment for robbery must contain the description of
the property stolen as in an indictment for larceny; the
ownership must be in the same way set out, and so of the
rest. Then if the aggravating matter is not proved at the
trial, the defendant may be convicted of the simple larceny.
If a statute makes it a larceny to steal a thing of which
there could be no larceny at common law, then it becomes,
LARCENY. 319
by construction of law, a robbery, to take this thing forci-
bly and feloniously from the person of one put in fear. —
2 Bishop, Cr. Law, 1158, 1159, 1160. An actual taking
either by force or upon delivery must be proved, that is, it
must appear that the robber actually got possession of the
goods. Therefore if a robber cut a man's girdle in order to
get his purse, and the purse thereby fall to the ground,
and the robber run off or be apprehended before he can take
it up, this would not be robbery, because the purse was
never in the possession of the robber. — 1 Hale, P. C. 553.
But it is immaterial whether the taking were by force
or upon delivery, and if by delivery it is also immaterial
whether the robber have compelled the prosecutor to it
by a direct demand in the ordinary way, or upon any
colorable pretence. — Archbold, 417.
A carrying away must also be proved as in other cases
of larceny. And therefore where the defendant, upon
meeting a man carrying a bed, told him to lay it down or
he would shoot him, and the man accordingly laid down
the bed, but the robber, before he could take it up so as
to remove it from the place where it lay, was apprehended,
the judges held that the robbery was not complete. — R. v.
Farrell, 1 Leach, 362 ; 2 East, P. C. 557.
But a momentary possession, though lost again in the
same instant, is sufficient. James Lapier was convicted
of robbing a lady, and taking from her person a diamond
earring. The fact was that as the lady was coming out
of the Opera house she felt the prisoner snatch at her ear-
ring and tear it from her ear, which bled, and she was
much hurt, but the earring fell into her hair, where it
was found after she returned home. The judges were all
of opinion that the earring being in the possession of the
prisoner for a moment, separate from the lady's person,
320 LARCENY.
was sufficient to constitute robbery, although he could
not retain it, but probably lost it again the same instant.
—2 East, P. C. 557.
If the thief once takes possession of the thing, the
offence is complete, though he afterwards return it ; as if
a robber, finding little in a purse which he had taken
from the owner, restored it to him again, or let it fall in
struggling, and never take it up again, having once had
possession of it. — 2 East, loc. cit. ; 1 Hale, 533 ; P. v.
Peat, 1 Leach, 228; Archbold, 417.
The taking must have been feloniously done, that is to
say animo furandi, as in larceny, and against the will of
the party robbed, that is, that they were either taken
from him by force and violence, or delivered up by him
to the defendant, under the impression of that degree of
fear and apprehension which is necessary to constitute
robbery. — Archbold, 417.
Where on an indictment for robbery, it appeared that
the prosecutor owed the prisoner money, and had pro-
mised to pay him five pounds, and the prisoner violently
assaulted the prosecutor, and so forced him then and there
to pay him his debt, Erie, C. J., said that it was no rob-
bery, there being no felonious intent. — R. v. Hemmings,
±F.&F. 50.
2. Violence. —The prosecutor must either prove that
he was actually in bodily fear from the defendant's
actions, at the time of the robbery, or he must prove cir-
cumstances from which the court and jury may presume
such a degree of apprehension of danger as would induce
the prosecutor to part with his property; and in this
latter case, if the circumstances thus proved be such as
are calculated to create such a fear, the court will not
pursue the inquiry further, and examine whether the
LARCENY. 321
fear actually existed. Therefore, if a man knock another
down, and steal from him his property whilst he is insen-
sible on the ground, that is robbery. Or suppose a man
makes a manful resistance, but is overpowered, and his
property taken from him by the mere dint of superior
strength, this is a robbery. — Fost. 128; R. v. Davies;
2 East, P. C. 709.
One Mrs. Jeffries, coming out of a ball, at St. James'
Palace, where she had been as one of the maids of honor,
the prisoner snatched a diamond pin from her head-dress
with such force as to remove it with part of the hair from
the place in which it was fixed, and ran away with it :
Held, to be a robbery. — R. v. Moore, 1 Leach, 335. See
erupra, Laptev's Case, 1 Leach, 320,
Where the defendant laid hold of the seals and chain of
the prosecutor's watch, and pulled the watch out of his fob,
but the watch, being secjired by a steel chain which went
; round the prosecutor's neck, the defendant could not take
it until, by pulling and two or three jerks, he broke the
! chain, and then ran off with the watch ; this was holden
! to be robbery. — R. v. Ma-son, R. & R. 419. But
( merely snatching property from a person unawares, and
i running away with it, will not be robbery.— R. v. Ste^
2 East, P. C. 702 ; R. v. Homer, Id. 703 ; R. v. Baker,
1 Leach, 290; R. v. Robins, do. do. ; R. v. Macavly, 1
Leach, 237 ; Archbohl, 414, because fear cannot in fact
be presumed in such a case. When the prisoner caught
hold of the prosecutor's watch-chain, and jerked his watch
from his pocket with considerable force, upon which a
scuffle ensued, and the prisoner was secured, Garrow, B.,
held that the force used to obtain the watch did not make
the offence amoimt to robbery, nor did the force used
afterwards in the scuffle ; for the force necessary to
w
322 LARCENY.
constitute robbery must be either immediately before or at
the time of the larceny, and not after it. — R. v. Gnosil, 1
G. & P. 304. The rule, therefore, appears to be well
established, that no sudden taking or snatching of property
unawares from a person is sufficient to constitute robbery,
unless some injury be done to the person, or there be a
previous struggle for the possession of the property, or
some force used to obtain it. — Archbold, loc. cit ; 2
Russ. 104.
If a man take another's child, and threaten to destroy
him, unless the other give him money, this is robbery. — R.
v. Reane, 2 East, P. C. 735 ; R. v. Donally, Id. 713. So
where the defendant, at the head of a mob, came to the
prosecutor's house and demanded money, threatening to
destory the house unless the money ware given, the prose-
cutor therefore gave him five shillings, but he insisted on
more, and the prosecutor, being .terrified, gave him five
shillings more ; the defendant and the mob then took bread,
cheese and cider from the prosecutor's house, without his
permission, and departed, this was holden to be a robbery
as well of the money as of the bread, cheese and cider. — R.
v. Simons, 2 East, P. G. 731 ; R. v. Brown, Id. So where
during some riots at Birmingham, the defendant threatened
the prosecutor that unless he would give a certain sum of
money, he should return with the mob and destroy his
house, and the prosecutor, under the impression of this
threat, gave him the money, this was holden by the judges
to be robbery. — R. v. Astley, 2 East, P. G. 729. So where
during the riots of 1780, a mob headed by the defendant
came to the prosecutor's house, and demanded half a crown,
which the prosecutor, from terror of the mob, gave, this was
holden to be robbery, although no threats were uttered. — I
jR. v. Taplin, 2 East, P. G. 712. Upon an indictment for
LARCENY. 323
robbery, it appeared that a mob came to the house of the
prosecutor, and with the mob the prisoner who advised the
prosecutor to give them something to get rid of them, and
prevent mischief, by which means they obtained money
from the prosecutor ; and Parke, J., after consulting Vau-
ghan and Anderson, J. J., admitted evidence of the acts of
the mob at other places before and after on the same day,
to show that the advice of the prisoner was not bond fide,
but in reality a mere mode of robbing the prosecutor. — R.
v. Winkworth, 4 C. & P. 444 ; Archbold, 414. Where the
prosecutrix was threatened by some person at a mock auc-
tion to be sent to prison, unless she paid for some article
they pretended was knocked down to her, although she
never bid for it ; and they accordingly called in a pretend-
ed constable, who told her that unless she gave him a
shilling she must go with him, and she gave him a
shilling accordingly, not from any apprehension of personal
danger, but from a fear of being taken to prison, the judges
held that the circumstances of the case were not sufficient
to constitute the offence of robbery ; it was nothing more
than a simple duress, or a conspiracy to defraud. — R. v.
Kneuiand, 2 Leach, 721 ; 2 Russ. 118. This case is
now provided for by sect. 2, c. 173, post. In R. v. Mae-
wrath, 11 Cox, 347, a woman went into a mockauction
room, where the prisoner professed to act as auctioneer.
Some cloth was put up by auction, for which a person in
the room bid 25 shillings. A man standing between the
woman and the door said to the prisoner that she had bid
26 shillings for it, upon which the prisoner knocked it down
to the woman. She said she had not bid for it, and would
not pay for it, and turned to go out. The prisoner said she
must pay for it, before she would be allowed to go out, and
she was prevented from going out. She then paid 26 shii-
324 LARCENY.
lings to the prisoner, because she was afraid, and left with
the cloth ; the prisoner was indicted for larceny, and hav-
ing been found guilty, the conviction was affirmed ; but
Martin, B., was of opinion that the facts proved also a
robbery. Where the defendant with an intent to take money
from a prisoner who was under his charge for an assault,
handcuffed her to another prisoner, kicked and beat her
whilst thus handcuffed, put her into a hackney coach for
the purpose of carrying her to prison, and then took four
shillings from her pocket for the purpose of paying the
coach hire : the jury finding that the defendant had previ-
ously the intent of getting from the prosecutrix whatever
money she had, and that he used all this violence for the
purpose of carrying his intent into execution, the judges
held clearly that this was robbery. — R. v. Gascoigne, 2
East, P. C. 709. Even in a case where it appeared that the
defendant attempted to commit a rape upon the prosecutrix,
and she, without any demand from him, gave him some
money to desist, which he put into his pocket, and then
continued his attempt until he was interrupted ; this was
holden by the judges to be robbery, for the woman from
violence and terror occasioned by the prisoner's behaviour
and to redeem her chastity, offered the money which it is
clear she would not have given voluntarily, and the pris-
oner, by taking it, derived that advantage to himself from
his felonious conduct, though his original intent was to
commit a rape. — R. v. Blackham, 2 East, P. C. 711.
And it is of no importance under what pretence the
robber obtains the money, if the prosecutor be forced to
deliver it from actual fear, or under circumstances from
which the court can presume it. As, for instance, if a
man with a sword drawn ask alms of me, and I give
it him through mistrust and apprehension of violence,
LARCENY. 325
this is a felonious robbery. Thieves come to rob A., and
finding little about him enforce him by menace of death
to swear to bring them a greater sum, which he does accord-
ingly, this is robbery ; not for the reason assigned by Haw-
kins, because the money was delivered while the party
thought himself bound in conscience to give it by virtue of
the oath, which in his fear he was compelled to take ;
which manner of stating the case affords an inference that
the fear had ceased at the time of the delivery, and that
the owner then acted solely under the mistaken compulsion
of his oath. But the true reason is given by Lord Hale and
others ; because the fear of that menace still continued
upon him at the time he delivered the money. — 2 East, P.
C. 714. Where the defendant, at the head of a riotous mob,
stopped a cart laden with cheeses, insisting upon seizing
them for want of a permit ; after some altercation, he went
with the driver, under pretence of going before a magistrate,
and during their absence the mob pillaged the cart ; this
was holden to be a robbery. — Merrimam v. Hundred of
Chippenham, 2 East, P. C. 709. On this case, it is well
observed that the opinion that it amounted to a robbery
must have been grounded upon the consideration that the
first seizure of the cart and goods by the defendant, being
by violence and while the owner was present, constituted
the offence of a robbery. — 2 Russ. 111.
So where the defendant took goods from the prosecutrix
of the value of eight shillings, and by force and threats com-
pelled her to take one shilling under pretence of payment
for them, this was holden to be % robbery. — Simon's Case
and Spencer's Case, 2 East, P. C. 712. The fear must pre-
cede the taking. For if a man privately steal money from
the person of another, and afterwards keep it by putting
him in fear, this is no robbery, for the fear is subsequent
326 LARCENY.
to the taking. — jR. v. Harman, 1 Hale, 534 ; and E. v.
Gnosil, ante; Archbold, 416.
" It remains further to be considered of what nature this
fear may be. This is an inquiry the more difficult, because
it is nowhere defined in any of the acknowledged treatises
upon the subject. Lord Hale proposes to consider what
shall be said a putting in fear, but he leaves this part of
the question untouched. Lord Coke and Hawkins do the
same. Mr. Justice Foster seems to lay the greatest stress
upon the necessity of the property's being taken against
the will of the party, and he leaves the circumstance of fear
out of the question ; or that at any rate, when the fact is
attended with circumstances of evidence or terror, the law,
in odium spoliatoris, will presume fear if it be necessary,
where there appear to be so just a ground for it. Mr. Justice
Blackstone leans to the same opinion. But neither of them
afford any precise idea of the nature of the fear or appre-
heusion supposed to exist. Staundford defines robbery to
be a felonious taking of anything from the person or in the
presence of another, openly and against his will ; and
Bracton also rests it upon the latter circumstance. I have
the authority of the judges, as mentioned by Willes, J., in
delivering their opinion in Donalltfs Case, in 1779, to
justify me in not attempting to draw the exact line in this
case ; but thus much, I may venture to state, that on the one
hand the fear is not confined to an apprehension of bodily
injury, and, on the other hand, it must be of such a nature
as in reason and common experience is likely to induce a
person to part with his property against his will, and to put
him, as it were, under a temporary suspension of the
power of exercising it through the influence of the terror
impressed ; in which case fear supplies, as well in sound
reason as in legal construction, the place of force, or an
LARCENY. 327
actual taking by violence, or assault, upon the person." —
2 East, P. C. 713.
It has been seen, ante, R. v. Astley, 2 East, P.
C. 729, that a threat to destroy the prosecutor's house
is deemed sufficient by law to constitute robbery, if
money is obtained by the prisoner in consequence of it.
This is no exception to the law, which requires violence
or fear of bodily injury, because one without a house
is exposed to the inclement elements ; so that to deprive
a man of his house is equivalent to inflicting personal
injury upon him. In general terms, the person robbed
must be, in legal phrase, put in fear. But if force is used
there need be no other fear than the law will imply from
it ; there need be no fear in fact. The proposition is some-
times stated to be that there must be either force or fear,
while there need not be both. The true distinction is
doubtless that, where there is no actual force, there must
be actual fear, but where there is actual force, the fear is
conclusively inferred by the law. And within this dis-
tinction, assaults, where there is no actual battery, are pro-
bably to be deemed actual force. Where neither this force
is employed, nor any fear is excited, there is no robbery,
though there be reasonable grounds for fear. — 2 Bishop, Or.
Law, 1174. Thus to constitute a robbery from the person,
if there is no violence, actual or constructive, the party
beset mu3t give up his money through fear ; and when his
fears are not excited, but his secret motive for yielding is
to prosecute the offender, this crime is not committed.
When, however, there is an assault, such as would furnish
a reasonable ground for fear, the offence of robbery is held
to be complete, though the person assaulted parts with his
money for the purpose of apprehending and bringing to
punishment the wrong doer. — 1 Bishop, Cr. Law, 438.
328 LARCENY.
From the person. — The goods must be proved to have
baen taken from the person of the prosecutor. The legal
meaning of the word person, however, is not here, that the
taking must necessarily be from the actual contact of the
body, but if it is from under the personal protection, that
will suffice. Within this doctrine, the person may be
deemed to protect all things belonging to the individual,
within a distance not easily defined, over which the
influence of the personal presence extends. If a thief,
says Lord Hale, come into the presence of A., and, with
violence and putting A. in fear, drive away his horse,
cattle or sheep, he commits robbery. But if the taking be
not either directly from his person, or in his presence, it ia
not robbery. — 2 Bishop, Cr. Law, 1178 ; Blaclcstone Com.
4 vol. 242. In robbery, says East, 2 P. C. 707, it is suffi-
cient if the property be taken in the presence of the owner,
it need not be taken immediately from his person, so (hat
there be violence to his person, or putting him in fear. As
where one, having first assaulted another, takes away his
horse standing by him ; or having put him in fear, drives
his cattle out of his pasture in hi? presence, or takes up his
purse which the other in his fright had thrown it into a
bush. Or, adds Hawkins, rob my servant of my money before
my face, after having first assaulted me. — 1 Hawkins, 214.
Where, on an indictment for robbery, it appeared that the
prosecutor gave his bundle to his brother to carry for him,
and while they were going along the road the prisoner
assaulted the prosecutor, upon which his brother laid down
his bundle in the road, and ran to his assistance, and one
of the prisoners then ran away with the bundle ; Vaughan,
B., intimated an opinion that under these circumstances
the indictment was not sustainable, as the bundle was in
the possession of another person at the time when the
LARCENY. 329
assault was committed. Highway robbery was a felonious
taking of the property of another by violence against his
will, either from his person or in his presence : the bundle
in this case was not in the prosecutor's possession. If these
prisoners intended to take the bundle, why did they assault
the prosecutor, aud not the person who had it. — R. v. Fal-
hv:s, 2 Russ. 107. The prisoners were convicted of a simple
larceny. Qiicere, whether if the indictment had been for
robbing the brother, who was carrying the bundle, it might
not have been sustained, as it was the violence of the pris-
oners that made him put it down and it was taken in his
presence. In R. v. Wright, Styles, 156, it was holden that
if a man's servaut be robbed of his master's goods in the
sight of his master, this is robbery of the master. — Note
by Greaves.
Where on an indictment for robbery and stealing from
the person, it was proved that the prosecutor who was para-
lyzed, received, whilst sitting on a sofa in a room, a violent
blow on the head from one prisoner, whilst the other pris-
oner went and stole a ca.sh-box from a cupboard in the
same room ; it was held that the cash-box being in the
room in which the prosecutor was sitting, and he being
aware of that fact, it was virtually under his protection ;
and it was left to the jury to say whether the cash-box was
under the protection of the prosecutor at the time it was
stolen. — R. v. Seluay, 8 Cox, 235.
Indictment. — The offence of robbery being felony, it is
necessary for the indictment to charge the act to have been
committed "feloniously." There is some reason to sup-
pose that, if this word ■ feloniously" is prefixed to the first
material allegation, its force will extend through and qual-
ify the rest. — R. v. Nicholson, 1 East, 346. But, however
this may be, if the violence which enters into the offence,
330 LARCENY.
as one of its ingredients, is the first thing stated in the
indictment, and the word " feloniously " is not employed
to qualify it, but is inserted in a subsequent part of the
indictment, the whole will be insufficient. Thus, if the
allegation is that the defendant " in the king's highway,
therein and upon one did make an assault, and him
the said in corporal fear and danger of his life,
then and there feloniously did put, and one metal watch of
the property of the said then and there feloniously
did steal, take and carry away '' it will be inade-
quate, because it does not charge the assault to have been
feloniously made. — R. v. Pelfryman, 2 Leach, 563 ;
2 Bishop, Cr. Proc. 1003. The taking must be charged
to be with violence from the person, and against the will of
the party ; but it does not appear certain that the indict-
ment should also charge that he was put in fear, though
this is usual, and, therefore, safest to be done.
But in the conference on Donally's case, where the sub-
ject was much considered, it was observed by Eyre, B., that
the more ancient precedents did not state the putting in
fear, and that though others stated the putting in corporeal
fear, yet the putting in fear of life was of modern introduc-
tion. Other judges considered that the gist of the offence
was the taking by violence, and that the putting in fear
was only a constructive violence, supplying the place of
actual force. In general, however, as was before observed,
no technical description of the fact is necessary, if upon the
whole it plainly appears to have been committed with
violence against the will of the party. — 2 East, P. G. 783.
The ownership of the property must be alleged the same
as in an indictment for larceny. The value of the articles
stolen need not be stated. In P. v. Singly, 5 G. & P. 602,
the prisoner robbed the prosecutor of a piece of paper, con-
LARCENY. . 331
taining a memorandum of money that a person owed him,
and it was held sufficient to constitute robbery.
If the robbery be not proved, the jury may return a ver-
dict of an assault with intent to rob, if the evidence war-
rants it, and then the defendant is punishable as under sec.
33. By sec. 191 of the Procedure Act, if the intent be not
proved, a verdict of common assault may be given. — R. v.
Archer, 2 Moo. C. C. 283 ; R. v. Hagan, 8 C. <£ P. 174 ; R.
v. Ellis, 8 a & P. 654 ; R. v. Nhholls, 8 C. & P. 269. R. v.
Woodkall, 12 Cox, 240, is not to be followed here, as the
enactment to the same effect is now, in England, repealed.
The word ■ together n is not essential in an indictment
for robbery against two persons to show that the offence
was a joint one. — R. v. Provost, 1 M. L. R. Q. B. 477.
A prisoner accused of assault with intent to rob may be
found guilty of simple assault. — R. v. Oneil, 11 R.L. 334.
3-4. Every one who, being armed with an offensive weapon or
instrument, robs, or assaults with intent to rob, any person, or
together with one or more other person or persons, robs or assaults
with intent to rob any person, or robs any person, and at the time of,
or immediately before, or immediately atter such robbery, wounds,
beats, strikes or uses any other personal violence to any person, is
guilty of felony, and liable to imprisonment for life. — 32-33 F., c. 21,
s. 42. 24-25 F, c 96, *. 43, Imp.
This clause provides for five offences : 1. Being armed
with any offensive weapon or instrument, robbing any
person.
2. Being so armed, assaulting any person with intent to
rob this person.
3. Together with one or more person or persons, robbing
any other person.
4. Together with one or more person or persons, assault-
ing any person with intent to rob this person.
5. Robbing any person, and at the time of or imme-
332 . LARCENY.
diately before, or immediately after such robbery, wound-
ing, beating, striking, or using any other personal violence
to any person.
1. Indictment for a robbery by a person armed that
J. S., on at being then armed with a cer-
tain offensive weapon and instrument, to wit, a bludgeon,
in and upon one D. feloniously did make an assault, and
him the said D. in bodily fear and danger of his life then
feloniously did put, and a sum of money, to wit, the sum
of ten pounds, of the moneys of the said D., then felo-
niously and violently did steal, take and carry away against
2. Indictment for an assault by a person armed with
intent to commit robbery that J. S. on at
being then armed with a certain offensive weapon and in-
strument, called a bludgeon, in and upon one D. feloniously
did make an assault, with intent the moneys, goods and
chattels of the said D. from the person and against the
will of him the said D., then feloniously and violently to
steal, take and carry away, against the form
3. Indictment for robbery by two or more persons in
company that A. B. andD. H. together, in and upon
one J. N. feloniously did make an assault, and him the
said J. N. in bodily fear and danger of his life then and
there together feloniously did put, and the moneys of the
said J. N. to the amount of from the person and
against the will of the said J. N., then feloniously and
violently together did steal, take and carry away, against
the form (If one only of them be apprehended, it
will charge him by name together with a certain other
person, or certain other persons, to the jurors aforesaid
unknown). — Archbold, 418 ; 2 Rass. 142.
4. Indictment for, together with one or more person,
LARCENY. 333
or persons, assaulting with intent to rob. — Can be drawn
on forms 2 and 3.
5. Robbery accompanied by wounding, etc. — That J.
N. at on in and upon one A.M. feloniously
die make an assault, and him the said A. M. in bodily fear
and danger of his life then feloniously did put, and the
moneys of the said A. M. to the amount of ten pounds, and
one gold watch, of the goods and chattels of the said A. M.
from the person and against the will of the said A. If. then
feloniously and violently did steal, take and carry away ;
and that the said J. N. immediately before he so robbed
the said A. M. as aforesaid, the said A. M. feloniously did
wound, against (It will be immaterial, in any of
these indictments, if the place where the robbery was
committed be stated incorrectly.) — Archbold, 412.
The observation, ante, applicable to robbery generally,
will apply to these offences.
Under indictment number 1, the defendant may be
convicted of the robbery only, or of an assault with intent
to rob. The same, under indictments numbers 3 and 5.
And wherever a robbery with aggravating circumstances,
that is to say, either by a person armed, or by several
persons together, or accompanied with wounding, is charged
in the indictment, the jury may convict of an assault with
intend to rob, attended with the like aggravation, the
assault following the nature of the robbery. — R. v. Mitchell,
2 Ben. 468, and remarks upon it, in Dears. 19.
By sect. 191 of the Procedure Act, a verdict of common
assault may be returned, if the evidence warrants it. And
by sect. 183, if the offence has not been completed, a
verdict of guilty of the attempt to commit the offence
charged may be given, if the evidence warrants it.
Upon an indictment for robbery charging a wounding,
334 LAKCENY.
the jury may, under sec. 189 of the Procedure Act,
convict of unlawfully wounding. — 2 Russ. 14-4.
See R. v. Provost, under preceding section.
BURGLARY.
GENERAL REMARKS.
Burglary, or nocturnal housebreaking, burgi latroci-
nium, which by our ancient law, was called hamesechen,
has always been looked upon as a very heinous offence.
For it always tends to occasion a frightful alarm, and
often leads by natural consequence to the crime of murder
itself. Its malignity also is strongly illustrated by
considering how particular and tender a regard is paid
by the laws of England to the immunity of a man's
house, which it styles its castle, and will never suffer to
be violated with impunity ; agreeing herein with the
sentiments of Ancient Rome, as expressed in the words
of Tully (Pro Domo. 41,) " quid enim sanctius, quid
omni religione rnunitius, quam domus uniuscujusque
civium?" For this reason no outward doors can, in gene-
ral, be broken open to execute any civil process, though, in
criminal cases, the public safety supersedes the private.
Hence, also, in part arises the animadversion of the law
upon eavesdroppers, nuisancers, and incendiaries ; and to
this principle it must be assigned, that a man may
assemble people together lawfully (at least if they do not
exceed eleven), without danger of raising a riot, rout or
unlawful assembly, in order to protect and defend his
house, which he is not permitted to do in any other case.
— Stephens' Blackstone, Vol. 4, 104.
Burglary is a breaking and entering the mansion-house
of another in the night, with intent to commit some
LARCENY. 335
felony within the same, whether such felonious intent be
executed or not. — 2 Ru.ss. 1. In which definition there
are four things to be considered, the time, the place, the
manner, and the intent.
The time. — The time must be by night and not by day,
for in the day time there is no burglary. As to what is
reckoned night and what day for this purpose, anciently
the day was accounted to begin only at sunrising, and to
end immediately upon sunset ; but the better opinion
afterwards was that if there were daylight or crepusculum
enough, begun or left, to discern a man's face withal, it
was no burglary. But this did not extend to moonlight,
for then many midnight burglaries would have gone
unpunished ; and besides, the malignity of the offence
does not so properly arise from its being done in the dark,
as at the dead of night, when all creation is at rest. But
the doctrines of the common law on this subject are no
longer of practical importance, as it is enacted by sect. 2 of
the Larceny Act, that for the purposes of that Act, and in
reference to the crime now under consideration, "the
night shall be deemed to commence at nine of the clock
in the evening of each day, and to conclude at six of the
clock in the morning of the next succeeding day, and the
day shall include the remainder of the twenty -four hours."
The breaking and entering must both be committed in the
night-time ; if the breaking be in the day, and the
entering in the night, or vice versd, it is no burglary. —
1 Hale, 551. But the breaking and entering need not be
both done in the same ni^jht ; for if thieves break a hole
in a house one night, with intent to enter another night
and commit felony and come accordingly another night
and commit a felony, seems to be burglary, for the breaking
and entering were both noctanter} though not the same
336 LARCENY.
night. — 2 Russ. 39. The breaking on Friday night with
intent to enter at a future time, and the entering on the
Sunday night constitute burglary. — R. v. Smith, R.
& R. 417. And then, the burglary is supposed to have
taken place on the night of the entry, and is to be charged
as such. — 1 Hale, 551. In Jordan's Case, 7 C.& P. 432,
it was held that where the breaking is on one night and the
entry on another, a party present at the breaking, but
absent at the entry, is a principal.
The place. — The breaking and entering must take place
in a mansion or dwelling-house to constitute burglary.
At common law, Lord Hale says that a church may
be the subject of burglary, 1 Hale, 559, on the ground,
according to Lord Coke, that a church is the mansion
house of God, though Hawkins, 1 vol. 133, does not
approve of that nicety, as he calls it, and thinks that
burglary in a church seems to be taken as a distinct bur-
glary from that in a house. However, this offence is now
provided for by sections 35 and 42 of the Larceny Act.
What is a dwelling-house ? — From all the cases, it
appears that it must be a place of actual residence. Thus
a house under repairs, in which no one lives, though the
owner's property is deposited there, is not a place in which
burglary can be committed; R. v. Lyons, 1 Leach, 185 ; in
this case, neither the proprietor of the house, nor any of his
family, nor any person whatever had yet occupied the house.
In Fuller's Case, 1 Leach, note, loc. cit, the defendant
was charged of a burglary in the dwelling-house of Henry
Holland. The house was new built, and nearly finished ;
a workman who was constantly employed by Holland
slept in it for the purpose of protecting it ; but none of
Holland's family had yet taken possession of the house,
and the Court held that it was not the dwelling-house of
LARCENY. 337
Holland, and where the owner has never by himself or by
any of his family, slept in the house, it is not his dwelling-
house, so as to make the breaking thereof burglary, though
he has used it for his meals, and all the purposes of his
business. — See R. v. Martin, R. & R. 108.
If a porter lie in a warehouse for the purpose of protect-
ing goods, R. v. Smith, 2 East, 497, or a servant lie in a
barn in order to watch thieves, R. v. Brown, 2 East, 501,
this does not make the warehouse or barn a dwelling-house
in which burglary can be committed. But if the agent of
a public company reside at a warehouse belonging to his
employers, this crime may be committed by breaking it,
and he may be stated to be the owner. — R. v. Margetts, 2
Leach, 931. Where the landlord of a dwelling-house, after
the tenant, whose furniture he had bought, had quitted it,
put a servant iuto it to sleep there at night, until he should
re-let it to another tenant, but had no intention to reside
in it himself; the judges held that it could not be deemed
the dwelling-house of the landlord. — R. v. Davis, 2 Leach,
876. So where the tenant had put all his goods and fur-
niture into the house, preparatory to his removing to it,
with his family, but neither he nor any of his family had as
yet slept in it, it was holden not to be a dwelling-house in
which burglary can be committed. — R. v. Hal-lardy 2 East,
498 ; R. v. Thompson, 2 Leach, 771. And the same has
been ruled, when under such circumstances the tenant
had put a person, not being one of the family, into the
house, for the protection of the goods and furniture in it,
until it should be ready for his residence. — R. v. Harris,
2 Leach, 701 ; R. v. Fuller, 1 Leach, 187. A house will
not cease to be the house of its owner, on account of his
occasional or temporary absence, even if no one sleep in it
provided the owner has an animus revertendi. — R. v.
x
338 LAECENY.
Murray, 2 East, 496; and in R. v. Kirkham, 2 Starkie, Ev.
279, Wood, B., held that the offence of stealing in a dwel-
ling-house had been committed, although the owner and his
family had left six months before, having left the furniture
and intending to return. — Idem, Nuibrown's Case, 2 East,
496. And though a man leaves his house and never means
to live in it again, yet if he uses part of it as a shop, and
lets his servant and his family live and sleep in another
part of it, for fear the place should be robbed, and lets the
rest to lodgers, the habitation by his servant and family
will be a habitation by him, and the shop may still be con-
sidered as part of his dwelling-house. — R. v. Gibbons, R.
& R. 442. But where the prosecutor and upholsterer,
left the house in which he had resided wTith his family,
without any intent of returning to live in it, and took a
dwelling-house elsewhere, but still retained the former
house as a warehouse and workshop ; two women employed
by him as workwomen in his business, and not as domestic
servants, slept there to take care of the house, but did not
have their meals there, or use the house for any other
purpose than sleeping in it as a security to the house ; the
judges held that this was not properly described as the
dwelling-house of the prosecutor. — R. v. Flannagan, R. &
R. 187. The occupation of a servant in that capacity, and
not as tenant, is in many cases the occupation of a master,
and will be a sufficient residence to render it the dwelling-
house of the master. — R. v. Stock, R. & R. 185; R. v.
Wilson, R. &R. 115. Where the prisoner was indicted for
burglary in the dwelling-house of J. B., J. B. worked for
one W. who did carpenter's work for a public company, and
put J. B. into the house in question, which belonged to the
company, to take care of it, and some mills adjoining. J.
B. received no more wages after than before he went to
LARCENY. 339
live in the house. It was held not rightly laid. — R. v.
Ravjlings, 7 C. <& P. 150. If a servant live in a house of
his master's at a yearly rent, the house cannot be described
as the master's house. — R. v. Jarvis, 1 Moo. C. C. 7. Every
permanent building, in which the renter or owner and his
family dwell and lie, is deemed a dwelling-house, and bur-
glary may be committed in it. Even a set of chambers in
an inn or court or college is deemed a distinct dwelling-
house for this purpose. — Arclibold, 490. And it will be
sufficient if any part of his family reside in the house,
Thus where a servant boy of the prosecutor always slept
over his brew-house, which was separated from his dwell-
ing-house by a public passage, but occupied therewith, it
was holden, upon an indictment for burglary, that the brew-
house was the dwelling-house of the prosecutor, although,
being separated by the passage, it could not be deemed to
be part of the house in which he himself actually dwelt
R. v. Westivood, R. & R. 495. Burglary caunot be com-
mitted in a tent or booth in a market or fair, even although
the owner lodge in it, because it is a temporary not a per-
manent edifice, 1 Hale, 557 ; but if it be a permanent
building, though used only for the purpose of a fair, it is
a dwelling-house. — R. v. Smith, 1 £[. & Rob. 256. So even
a loft, over a stable, used for the abode of a coachman,
which he rents for his own use and that of his family, is
a place which may be burglariously broken. — R. v. T»
1 Leach, 305. If a house be divided, so as to form two or
more dwelling-houses, within the meaning of the word in
the definition of burglary, and all internal communication
be cut off, the partitions become distinct houses and each
part will be regarded as a mansion. — R. v. Jones, 1 Leach,
537. But a house the joint property of partners in trade in
which their business is carried on may be described as the
340 LARCENY.
dwelling-house of all the partners, though only one of the
partners reside in it. — R. v. Athea, 1 Moo. G. C. 329. If the
owner, who lets out apartments in his house to other per-
sons, sleep under the same roof and have but one outer
door common to him and his lodgers, such lodgers are only-
inmates and all their apartments are parcel of the one
dwelling-house of the owner. But if the owner do not lodge
in the same house, or if he and the lodgers enter by differ-
ent outer-doors, the apartments so let out are the mansion
for the time being of each lodger respectively, even though
the rooms are let by the year. — 2 East, 505. If the owner
let off a part, but do not dwell in the part he reserves for
himself, then the part let off is deemed in law the dwell-
ing-house of the party who dwells in it, whether it commu-
nicates internally with the other part or not ; but the part
he has reserved for himself is not the subject of burglary ;
it is not his dwelling-house, for he does not dwell in it, nor
can it be deemed the dwelling-house of the tenant, for it
forms no part of his lodging. — R. v. Rodgers, R. v. Garrell,
R. v. Trapshaw, 1 Leach, 89, 237, 427. If the owner let
the whole of a dwelling-house, retaining no part of it for
his or his family's dwelling, the part each tenant occupies
and dwells in is deemed in law to be the dwelling-house
of such tenant, whether the parts holden by the respective
tenants communicate with each other internally or not. —
R. v. Bailey, 1 Moo. C. C. 23 ; R. v. Jenkins, R. & R. 244 ;
R. v. Carrell, 1 Leach, 237.
The term dwelling-house includes in its legal significa-
tion all out-houses occupied with and immediately commu-
nicating with the dwelling-house. But by sec. 36 of the
Larceny Act, post, no building, although within the same
curtilage with any dwelling-house, and occupied therewith,
shall be deemed to be part of such dwelling-house for any of
LARCEXY. 341
the purposes of this Act, unless there shall be a communica-
tion between such building and dwelling-house, either
immediate or by means of a covered and enclosed passage
leading from the one to the other. Where the prosecutor's
house consisted of two living-rooms, auother room used as
a cellar, and a wash-house on the ground floor, and of
three bedrooms upstairs, one of them over the wash-house
and the bedroom over the house-place communicated with
that over the wash-house, but there was no internal com-
munication between the wash-house and any of the rooms
of the house, but the whole was under the same roof, and
the defendant broke into the wash-house, and was breaking
through the partition- wall between the wash-house and the
house-place, it was holden that the defendant was properly
convicted of burglary in breaking the house. — R. v. Bur-
rowes, 1 Moo. C. C. 274. But where adjoining to the house
was a kiln, one end of which was supported by the wall of
the house, and adjoining to the kiln a dairy, one eud of
which was supported by the wall of the kiln, the roofs
of all three being of different heights, and there being no
internal communication from the house to the dairy, it was
held that burglary was not committed by breaking into
the dairy.— R. v. Eiggs, 2C.&K. 322. To be within the
meaning of this section, the building must be occupied
with the house in the same right ; and therefore where a
house let to and occupied by A. adjoined and communicated
with a building let to and occupied by A. and B., it was
holden that the building could not be considered a part of
the dwelling-house of A. — R. v. Jenkins, R. & R. 224. If
there be any doubt as to the nature of the building broken
and entered, a count may be inserted for breaking and
entering a building within the curtilage, under sect. 40,
post.
342 LAECENT.
It is necessary to state with accuracy in the indictment,
to whom the dwelling-house beloDgs. — 1 Burn, 554.
But in all cases of doubt, the pleader should vary in
different counts the name of the owner, although there
can be little doubt that a variance in this respect would
be amended at the trial. — Archbold, 496 ; 2 Russ. 47,
49. As to the local description cf the house, it must be
proved as laid ; if there be a variance between the indict-
ment and evidence in the parish, etc., where the house is
alleged to be situate, the defendant must be acquitted of
the burglary, unless an amendment be made. To avoid
difficulty, different counts should be inserted, varying the
local description. If the house be not proved to be a
dwelling-house, the defendant must be acquitted of the
burglary but found guilty of the simple larceny, if larceny
is proved. — Archbold, 489, 496.
The manner. — There must be both a breaking and an
entering of the house. The breaking is either actual or
constructive. Every entrance into the house by a tres-
passer is not a breaking in this case. As if the door of a
mansion-house stand open, and the thief enter this is not
breaking ; so if the window of the house be open, and a
thief with a hook or other engine draweth out some of the
goods of the owner, this is no burglary, because there is no
actual breaking of the house. But if the thief breaketh
the glass of a window, and, with a hook or other engine,
draweth out some of the goods of the owner, this is
burglary, for there was an actual breaking of the house. —
1 Hale, 551. Where a window was a little open, and not
sufficiently so to admit a person, and the prisoner pushed
it wide open and got in, this was held to be sufficient
breaking.— J?, v. Smith, 1 Moo. C. C. 178.
If there be an aperture in a cellar window to admit
LARCENY. 343
light, through which a thief enter in the night, this is not
burglary. — R. v. Lewis, 2 C. & P. 628 ; R. v. Spriggs, 1
M. <£ Rob. 357. There is no need of any demolition of
the walls or any manual violence to constitute a breaking.
Lord Hale says : " and these acts amount to an actual
breakiug, viz., opening the casement, or breaking the glass
window, picking open a lock of a door with a false key, or
putting back the lock with a knife or dagger, unlatching
the door that is only latched, to put back the leaf of a
window with a dagger." In Robert's alias Chambers' case,
2 East, 487, where a glass window was broken, and the
window opened with the hand, but the shutters on the
inside were not broken, this was ruled to be burglary
by Ward, Powis and Tracy, justices ; but they thought
this the extremity of the law ; and, on a subsequent
conference, Holt, C. J., and Powell, C. J., doubting
and inclining to another opinion, no judgment was given.
In Bailey's Case, R. & R. 341, it was held by nine judges
that introducing the hand between the glass of an outer
window and an inner shutter is a sufficient entry to
constitute burglary. If a thief enter by the chimney,
it is a breaking ; for that is as much closed as the nature
of things will permit. And it is burglarious breaking,
though none of the rooms of the house are entered. Thus
in R. v. Brice, R. & R. 450, the prisoner got in at a
chimney and lowered himself a considerable way down,
just above the mantel piece of a room on the ground floor.
Two of the judges thought he was not in the dwelling-
house, till he was below the chimney-piece. The rest of
the judges, however, held otherwise ; that the chimney was
part of the dwelling-house, that the getting in at the top
was breaking of the dwelling-house, and that the lowering
himself was an entry therein.
344 LARCENY.
Where the prisoner effected an entry, by pulling down
the upper sash of a window, which had not been fastened
but merely kept in its place by the pulley weight, the
judges held this to be a sufficient breaking to constitute
burglary, even although it also appeared that an outside
shutter, by which the window was usually secured, was
not closed or fastened at the time. — R. v. Haines, R. & R.
451. Where an entry was effected, first into an outer
cellar, by lifting up a heavy iron grating that led into it,
and then into the house by a window, and it appeared that
the window, which opened by hinges, had been fastened by
means of two nails as wedges, but could, notwithstanding,
easily be opened by pushing, the judges held that opening
the window, so secured, was a breaking sufficient to con-
stitute burglary. — R. v. Hall, R. & R. 355. So where a
party thrust his arm through the broken pane of a window,
and in so doing broke some more of the pane, and removed
the fastenings of the window and opened it. — R. v. Robin-
son, 1 Moo. C. G. 327.
But, if a window thus opening on hinges, or a door, be
not fastened at all, opening them would not be a breaking
within the definition of burglary. Even where the heavy
flat door of a cellar, which would keep closed by its own
weight, and would require some degree of force to raise it,
was opened ; it had bolts by which it might have been fas-
tened on the inside, but it did not appear that it was so
fastened at the time, the judges were divided in opinion
whether the opening of this door was such a breaking of
the house as constituted burglary ; six thinking that it was,
and six that it was not. — R. v. Callan, R. & R. 157. It
was holden in Brown's Case that it was. — 2 East, 487.
In R. v. Lawrence, 4 G. <fc P. 231, it was holden that it
was not. In R. v. Russell, 1 Moo. G. G. 377, it was holden
that it was.
LARCENY. 345
Where the offender, with intent to commit a felony,
obtains admission by some artifice or trick for the purpose
of effecting it, he will be guilty of burglary, for this is a
constructive breaking. Thus, where thieves, having an
intent to rob, raised the hue-and-cry, and brought the con-
stable, to whom the owner opened the door ; and when they
came in, they bound the constable and robbed the owner,
this was held a burglary. So if admission be gained
under pretence of business, or if one take lodging with a
like felonious intent, and afterwards rob the landlord, or get
possession of a dwelling-house, by false affidavits, without
any color of title, and then rifle the house, such entrance
being gained by fraud, it will be burglarious. In Hav:lins'
Case, she was indicted for burglary; upon evidence it appear-
ed that she was acquainted with the house, and knew that
the family were in the country, and meeting with the boy
who kept the key, she prevailed upon him to go with her
to the house, by the promise of a pot of ale ; the boy accord-
ingly went with her, opened the door and let her in, where-
upon she sent the boy for the pot of ale, robbed the house
and went off, and this being in the night time it was
adjudged that the prisoner was clearly guilty of burglary.
— 2 East, P. C. 485. If a servant conspire with a robber,
and let him into the house by night, this is burglary in both,
1 Hale, 553, for the servant is doing an unlawful act; and
the opportunity afforded him of doing it with greater ease
rather aggravates than extenuates the guilt. But if a ser-
vant, pretending to agree with a robber, open the door and
let him in for the purpose of detecting and apprehending
him, this is no burglary, for the door is lawfully open. —
R. v. Johnson, C. & if. 218.
And the breaking necessary to constitute burglary is
not restricted to the breaking of the outer wall or doors, or
346 LARCENY.
windows of a house ; if the thief got admission into the
house by the outer door or windows being open, and after-
wards breaks or unlocks an inner door, for the purpose of
entering one of the rooms in the house, this is burglary. —
1 Hale, 553 ; 2 East, P. C. 488. So if a servant open his
master's chamber door, or the door of any other chamber
not immediately within his trust, with a felonious design,
or if any other person lodging in the same house, or in a
public inn, open and enter another's door with such evil
intent, it is burglary.— 2 East, P. C. 491 ; 1 Hale, 553 ; R.
v. Wenmouth, 8 Cox, 348. The breaking open chests is
not burglary. — 1 Hale, 554. The breaking must be of some
part of the house; and, therefore, where the defendant
opened an area gate with a skeleton key, and then passed
through an open door into the kitchen, it was holden not
to be a breaking, there being no free passage from the area
to the house in the hours of sleep. — R. v. Davis, R. & R.
322 ; R. v. Bennett, R. & R. 289 ; R. v. Paine, 7 C. &P.
135. It is essential that there should be an entry as well
as a breaking, and the entry must be connected with the
breaking. — 1 Hale, 555 ; R. v. Davis, 6 Cox, 369 ; R. v.
Smith, R. & R. 417. It is deemed an entry when
the thief breaketh the house, and his body or any part-
thereof, as his foot or his arm, is within any part of the
house ; or when he putteth a gun into a window which he
hath broken, though the hand be not in, or into a bole of
the house which he hath made, with intent to murder or
kill, this is an entry and breaking of the house; but if he
doth barely break the house, without any such entry at all,
this is no burglary. — 3 Inst. 64 ; 2 East, P. C. 490. Thieves
came by night to rob a house ; the owner went out and
struck one of them ; another made a pass with a sword at
persons he saw in the entry, and, in so doing, his hand was
LARCENY. 347
over the threshold : this was adjudged burglary by great
advice.— 2 East, P. C. 490.
In Gibbon's Case, evidence that the prisoner in the night
time cut a hole in the window-shutters of a shop, part of
a dwelling-house, and putting his hand through the hole
took out watches, etc. was holden to be burglary, although
no other entry was proved. — 2 East, P. C. 490. Introduc-
ing the hand through a pane of glass, broken by the pris-
oner, between the outer window and an inner shutter, for
the purpose of undoing the window latch, is a sufficient
entry. — B. v. Bailey, B. & B. 341. So would the mere
introduction of the offender's finger. — B. v. Davis. B. & R.
499. So an entry down a chimney is a sufficient entry
in the house for a chimney is part of the house. — R.
v. Brice, R. <Sc R. 450.
It is even said that discharging a loaded gun into a house
is a sufficient entry. — 1 Hawkins, 132. Lord Hale. 1 vol.
155, is of a contrary opinion, but adds qucere ? 2 East, P.
C. 490, seems to incline towards Hawkins' opinion. Where
thieves bored a hole through the door with a centre-bit, and
parts of the chips were found in the inside of the house
this was holden not a sufficient entry to constitute burglary.
— R. v. Hughes, 2 East, P. C. 491. If divers come in the
night to do a burglary, and one of them break and euter,
the rest of them standing to watch at a distance, this is
burglary in all. — 1 Barn 550.
The entry need not be at the same time as the breaking.
— B. v. Smith, B. & B. 417.
In B. v. Spanner, 12 Cox, 155, Bramwell, B., held, that
an attempt to commit a burglary may be established, on
proof of a breaking with intent to rob the house, although
there be no proof of an actual entry. The prisoner was
indicted for burglary, but no entry having been proved
a verdict for an attempt to commit a burglary was given.
348 LARCENY.
The intent. — There can be no burglary but where the
indictment both expressly alleges, and the verdict also
finds, an intention to commit some felony ; for if it appear
that the offender meant only to commit a trespass, as to
beat the party or the like, he is not guilty of burglary. —
1 Hale, 561 ; whether a felony at common law or by statute
is immaterial. The intent must be proved as laid. Where
the intent laid was to kill a horse, and the intent proved
was merely to lame him, in order to prevent him from
running a race, the variance was holden fatal. — jK. v.
Dobbs, 2 East, P. C. 513. It is immaterial whether the
felonious intent be executed or not; thus, they are
burglars who, with a felonious intent, break any house
or church in the night, although they take nothing away.
And herein this offence differs from robbery, which requires
that something be taken, though it be not material of
what value. The felonious intent with which the prisoner
broke and entered the house cannot be proved by positive
testimony ; it can only be proved by the admission of the
party, or by circumstances from which the jury may
presume it. Where it appears that the prisoner actually
committed a felony after he entered the house, this is
satisfactory evidence, and almost conclusive that the
intent with which he broke and entered the house was to
commit that felony. Indeed, the very fact of a man's
breaking and entering a dwelling-house in the night time
is strong presumptive evidence that he did so with intent
to steal, and the jury will be warranted in finding him
guilty upon this evidence merely. — R. v. Brice, R. & R.
450 ; R. v. Spanner, 12 Cox, 155. If the intent be at all
doubtful, it may be laid in different ways in different
counts. — R. v. Thomson, 2 East, P. C, 515 ; 2 Russ. 45#
It seems sufficient in all cases where a felony has actually
LARCENY. 349
been committed, to allege the commission of it, as that is
sufficient evidence of the intention. But the intent to
commit a felony, and the actual commission of it, may
both be alleged ; and in general this is the better mode of
statement. — R. v. Fumival, R. <£ R. 445.
As to punishment, see post, on sect. 38.
It will be observed that the entry may be before the
breaking as well as after : for, though there were once
different opinions upon the question as to whether the
breaking out of a house to escape, by a man who had
previously entered by an open door with intent to commit
a felony, was burglary, all doubts are now removed by
sect. 37 of the Larceny Act, post.
BURGLAKY AND HOUSE-BREAKING.
35. Every one who breaks and enters any church, chapel,
meeting-house or other place of divine worship, and commits any
felony therein ; or being in any church, chapel, meeting-house or
other place of divine worship, commits any felony therein and breaks
out of the same, is guilty of felony, and liable to imprisonment for
life.— 32-33 V., c. 21, *. 49. 24-25 V.,c. 96, *. 50, Imp.
Greaves says : " This clause clearly includes every place
of public worship ; the former enactments were confined
not only to stealing, but to stealing any chattel. — (Sect. 17
c. 92 Cons. Stat. Can.) Therefore stealing fixtures was
not within them. — R. v. Barker, 3 Cox, 581. The present
clause includes any felony, and this clause and the eight
subsequent clauses are in this respect made uniform/'
The breaking and entering required to constitute an
offence under this section are of the same nature as in
burglary, except that they need not be in the night time.
If the breaking is with intent to commit a felony, but
no felony be actually committed, the offence falls under
sect. 42, post. A tower of a parish church is parcel of a
350 LARCENY.
church; R. v. Wheeler, 3 C. & P. 585 ; so is the vestry. —
R. v. £Wtis, C. & M. 298.
The goods of a dissenting chapel, vested in trustees,
cannot be described as the goods of a servant, put in
charge of the chapel and the things in it. — R. v. Hutchin-
son, R. & R. 412. Where the goods belonging to a church
are stolen, they may be laid in the indictment to be the
goods of the parishioners. — 2 Russ. 73.
Indictment for breaking and entering a church and
stealing therein. — the church of. the parish of
in the county of feloniously did break and
enter, and then, in the said church, one silver cup of the
goods and chattels of the parishioners of the said parish
feloniously did steal, take and carry away against the
form —Archbold.
Local description is necessary in the body of the indict-
ment.— R. v. Jarrald, L. & C. 320.
Indictment for stealing in and breaking out of a
church. — one silver cup, of the goods and chattels
of the parishioners of the parish of in the county
of ...i • in in the church of the said parish there situate,
feloniously did steal, take and carry away ; and that the
said (defendant) so being in the said church as aforesaid,
afterwards, and after he had so committed the said felony
in the said church, as aforesaid, on the day and year afore-
said, feloniously did break out of the said church, against
the form — Archbold, 397.
If a chapel which is private property be broken and
entered, lay the property as in other cases of larceny. If
the evidence fails to prove the breaking and entering a
church, etc., the defendant may be convicted of simple
larceny. — Archbold, 396. Upon the trial of any offence
under this section, the jury may, under sect. 183 of the
LARCENY. 351
Procedure Act, convict of an attempt to commit such
offence. — 2 Puss. 74.
36. No building, although within the same curtilage with any
dwelling-house, and occupied therewith, shall be deemed to be part
of such dwelling-house for any of the purposes of this Act, unless
there is a communication between such building and dwelling-house,
either immediate or by means of a covered and inclosed passage
leading from the one to the other. — 32-33 V., c. 21, s. 52. 24-25 V., c.
96, s. 53, Imp.
See remarks on burglary, and under sect. 40 post.
Where the burglary is in an outhouse, falling within
this clause, it must still be laid to have been done in the
dwelling-house. — 2 East, P. C. 512 ; R. v. Garland, 2
East, P. C. 493.
"Curtilage" is a court-yard, enclosure or piece of
land near and belonging to a dwelling-house. — Toml.
Law Did.
37. Every one who enters the dwelling-house of another with
intent to commit any felony therein, or being in such dwelling-house,
commits any felony therein, and, in either case, breaks out of such
dwelling-house in the night, is guilty of burglary. — 32-33 Y., c. 21, s.
50. 24-25 V., c. 96, s. 51, Imp.
Sect. 2, ante, declares what is night in the interpreta-
tion of this Act.
There was some doubt, at common law, on this point
Lord Bacon thought it was burglary, and Sir Matthew
Hale that it was not. — 4 Steph. Comm. 109.
If a person commits a felony in a house, and afterwards
breaks out of it in the night-time, this is burglary, although
he might have been lawfully in the house ; if, therefore, a
lodger has committed a larceny in the house and in the
night-time even lifts a latch to get out of the house with
the stolen property, this is a burglariously breaking out of
the house.— B. v. Wheeldon, 8 C. <b P. 747.
352 LARCENY.
It has been held that getting out of a house by pushing up
a new trap door, which was merely kept down by irs own
weight, and on which fastenings had not yet been put, but
the old trap-door, for which this new one was substituted,
had been secured by fastenings, was not a sufficient
breaking out of the house. — R. v. Lawrence, 4 G. & P.
231. On this case Greaves says: "unless a breaking
out of a house can be distinguished from the breaking
into a house, this case seems overruled by R. v. Russell,
1 Moo. C. G. 377."
If the felon, to get out of the dwelling-house, should
break an inside door, the case would plainly enough be
within the statute. But the facts of the cases seem not to
have raised the question, absolutely to settle it, whether
where the intent is not to get out, the breach of an inner
door by a person already within, having made what is
tantamount to a felonious entry, but not by breaking, is
sufficient to constitute burglary, if there is no entry
through the inner door thus broken. There are indications
that the breaking alone in such circumstances may be
deemed enough. — (R. v. Wheeldon, supra). On the other
hand, in an English case, it was held that burglary is not
committed by an entry, with felonious intent, into a
dwelling-house, without breaking, followed by a mere
breaking, without entry, of an inside door. — R. v. Davis,
6 Cox, 369 ; 2 Bishop Or. L. 100. But in Kelyng's
Cr. C. 104, Stevens & Haynes' re-print, it is said that
if a servant in the house, lodging in a room remote from
his master in the night-time, draweth the latch of a door
to come into his master's chamber, with an intent to kill
him, this is burglary '.
See next section for punishment and form of indict-
ment.
LARCENY. 353
Local description is necessary in the indictment. — 2
Buss. 47.
38. Every one who commits the crime of burglary is liable to
imprisonment for life.— 32-33 V., c. 21, s. 51. 24-25 V., c. 96, *. 52,
Imp.
On any indictment for burglary the prisoner may be
convicted of the offence of breaking the dwelling-house
with intent to commit a felony therein under sec. 42,
post ; sec. 193 Procedure Act.
On an indictment for burglary, the prisoner cannot be
found guilty of felonious receiving. — St. Laurent v. jR. 7
Q. L. R. 47. (But see sec. 135 Procedure Act.)
Indictment for burglary and larceny to the value of
twenty-five dollars. — The Jurors for Our Lady the Queen
upon their oath present, that J. S., on about the
hour of eleven of the clock, of the night of the same day,
the dwelling-house of J. N., situate feloniously and
burglariously did break and enter, with intent the goods and
chattels of one K. 0. in the said dwelling-house then beiug,
feloniously and burglariously to steal, take and carry away ;
and then, in the said dwelling-house, one silver sugar basin,
of the value of ten dollars, six silver table-spoons of the
value of ten dollars, and twelve silver tea-spoons of the
value of ten dollars, of the goods and chattels of the said
K. 0. in the said dwelling-house then being found, felo-
niously and burglariously did steal, take and carry away,
against the form of the statute in such case made and pro-
vided, and against the peace of Our Lady the Queen, her
crown and dignity. (Local description necessary.) — M. v.
Jarrald, L. & C. 320.
Lfpon this indictment, the defendant, if all the facts are
proved as alleged, may be convicted of burglary ; if they
are all proved, with the exception that the breaking was
Y
354 LARCENY.
by night, the defendant may be convicted of house-break-
ing, under se3t. 41, post; if no breaking he proved, but
the value of the property stolen proved to be as alleged,
over twenty-five dollars, the verdict may be of stealing in
a dwelling-house to that amount, under sect. 45, post ; if
no satisfactory evidence be offered to show, either that the
house was a dwelling-house or some building communi-
cating therewith, or that it was the dwelling-house of the
party named in the indictment, or that it was locally
situated as therein alleged, or that the stolen property was
of the value of twenty-five dollars still the defendant may
be convicted of a simple larceny. — 1 Taylor, Evid. 216;
Archbold, 489 ; R. v. Withal, 1 Leach, 88 ; JR. v. Comer,
1 Leach, 36 ; R. v. Hungerford, 2 East, P. C. 518. Where
several persons are indicted together for burglary and
larceny, the offence of some may be burglary and of the
others only larceny. — R. v. Butterworth R. & R. 520.
See post remarks under sec, 39.
If no felony was committed in the house, the indict-
ment should be as follows : —
That A. B., on about the hour of eleven in
the night of the same day, at the dwelling-house
of J. N. there situate, feloniously and burglariously did
break and enter, with intent the goods and chattels of
the said J. N. in the said dwelling-house then and
there being found, then and there feloniously and bur-
glariously to steal, take and carry away, against
3 Chitty, 1118.
The terms of art usually expressed by the averment
" feloniously and burglariously did break and enter " are
essentially necessary to the indictment. The word bur-
glariously cannot be expressed by any other word or cir-
cumlocution; and the averment that the prisoner broke
LARCENY. 355
and entered is necessary, because a breaking without an
entering, or an entering without a breaking, will not
make burglary. — 2 Buss. 50. The offence must be laid
to have been committed in a mansion-house or dwelling-
house, the term dwelling-house being that more usually
adopted in modern practice. It will not be sufficient to
say a house. — 2 Russ. 46 ; 1 Hale, 550. It has been said
that the indictment need not state whose goods were
intended to be stolen, or were stolen. — R. v. Clarke,
1 C. <t K. 421 ; R. v. Nicholas, 1 Cox, 218 ; R. v. Lawes%
1 C. & K. 62 ; nor specify which goods, if an attempt
or an intent to steal only is charged. — R. v. Johnson,
L. & C. 489.
It is better to state at what hour of the night the acts
complained of took place, though it is not necessary that
the evidence should correspond with the allegation as to
the exact hour ; it will be sufficient if it shows the acts
to have been committed in the night, as this word is inter-
preted by the statute. However, in R. v. Thompson,
2 Cox, 377, it was held that the hour need not be speci-
fied, and that it will be sufficient if the indictment alleges
in the night.
The particular felony intended must be specified in the
indictment. — 2 Bishop, Or. Proc. 142.
Indictment under sect. 37, for burglary by breaking
out. — The Jurors for Our Lady the Queen upon their oath
present, that J. S., on about the hour of eleven in
the night of the same day, being in the dwelling-house
of K. 0., situate one silver sugar-basin of the value
of ten dollars, six silver table-spoons of the value of
ten dollars, and twelve silver tea-spoons of the value
of ten dollars, of the goods and chattels of the said
K. 0., in the said dwelling-house of the said K. 0., then
356 LARCENY.
being in the said dwelling-house, feloniously did steal,
take and carry away ; and that he, the said J. S., being so
as aforesaid in the said dwelling-house, and having com-
mitted the felony aforesaid, in manner and form aforesaid,
afterwards, to wit, on the same day and year aforesaid,
about the hour of eleven in the night of the same day,
feloniously and burglariously did break out of the said
dwelling-house of the said K. O. against the form of
the statute in such case made and provided, and against
the peace of Our Lady the Queen, her crown and dignity.
— Archbold.
An indictment alleging " did break to get out " or
" did break and get out " is bad ; the words of the
statute are " break out." — R. v. Compton, 7 C. & P.
139. See, ante, R. v. Lawrence, 4 G. & P. 231 ; R. v.
Wheeldon, 8 G. & P. 747, and remarks on burglary. If it
be doubtful whether a felony can be proved, but there
be sufficient evidence of an intent to commit a felony,
a count may be added stating the intent. To prove
this count, the prosecutor must prove the entry, the
intent as in other cases, and the breaking out. —
Archbold, 501.
Upon the trial of any offence hereinbefore mentioned,
the jury may convict of an attempt to commit such
offence, if the evidence warrants it, under sect. 183 of the
Procedure Act.
39. Every one who enters any dwelling-house in the night, with
intent to commit any felony therein, is guilty of felony, and liable to
seven years' imprisonment — 32-33 V., c. 21, s. 53. 24-25 V., c. 96, s.
54, Imp.
Greaves says : " This clause is new, and contains a very
great improvement of the law. It frequently happened
on the trial of an indictment for burglary where no pro-
LARCENY. 357
perty had been stolen that the prisoner escaped altogether
for want of sufficient proof of the house having been
broken into, though there was no moral doubt that it
had been so. This clause will meet all such cases. It
will also meet all cases where any door or window has
been left open, and the prisoner has entered by it in the
night. It is clear that if, on the trial of an indictment
for burglary with intent to commit a felony, the proof of
a breaking should fail, the prisoner might nevertheless
be convicted of the offence created by this clause for such
an indictment contains everything that is required to
constitute an offence under this clause, in addition to the
allegation of the breaking, and the prisoner may be
acquitted of the breaking and convicted of the entering
with intent to commit felony, in the same way as on an
indictment for burglary and stealing, he may be acquitted
of the breaking, and convicted of the stealing. And this
affords an additional reason why in an indictment for
burglary and committing a felony, there should always be
introduced an averment of an intent to commit a felony,
so that if the proof of the commission of the felony and
of the breaking fail, the prisoner may nevertheless be
convicted of entering by night with intent to commit it."
Indictment. — that J. S., on about the
hour of eleven in the night of that same day, the dwelling
of K. 0., situate feloniously did enter, with intent
the goods and chattels of the said K. O. in the said
dwelling-house then being, feloniously to steal, take and
carry away, against the form — Archbold, 489.
As to what is night, and what is a dwelling-house, in
the interpretation of this clause, the same rules as for
burglary must be followed. Under sect. 183 of the Pro-
cedure Act, the jury may, if the evidence warrants it,
358 LARCENY.
convict of an attempt to commit the offence charged, upon
an indictment under this section.
Local description is necessary in the indictment. See
next section.
40. Every one who breaks and enters any building and commits
any felony therein, such building being within the curtilage of a
dwelling-house and occupied therewith, but not being part thereof,
according to the provision hereinbefore mentioned, or being in any
such building, commits any felony therein and breaks out of the same,
is guilty of felony, and liable to fourteen years' imprisonment. — 32-33
V., c. 21, s. 54. " 24-25 V., c 96, s. 55, Imp.
The breaking and entering must be proved in the same
manner as in burglary, except that it is immaterial whe-
ther it was done in the day or night. If this proof fail, the
defendant may be convicted of simple larceny.
The building described in the statute is " any building
within the curtilage of a dwelling-house, and occupied
therewith, not being part of the dwelling-house, according
to the provision hereinbefore mentioned p that is, not com-
municating with the dwelling-house, either immediately or
by means of a covered and enclosed passage leading from
the one to the other." To break and enter such a building
was, before the present statute, burglary, or house-breaking,
and although this enactment, which expressly defines the
building meant thereby to be a building within the curti.
lage, appears to exclude many of those buildings which
were formerly deemed parcel of the dwelling-house, from
their adjoining to the dwelling-house, and being occupied
therewith, although not within any common enclosure or
curtilage, yet some of the cases decided upon these sub-
jects may afford some guide to the construction of the pre-
sent section. Where the defendant broke into a goose-
house, which opened into the prosecutor's yard, into which
yard the prosecutor's house also opened, and the
LABCENY. 359
yard was surrounded, partly by other buildings of the
homestead, and partly by a wall in which there was a gate
leading to the road, and some of the buildings had doors
opening into the lane, as well as into the yard, the goose-
house was holden to be part of the dwelling-house. — R. v.
Clayburn, R. & R. 3tf 0. Where the prosecutor's house was
at the corner of the street, and adjoining thereto was a work-
shop, beyond which a coach-house and stable adjoined, all
of which were used with the house, and had doors opening
into a yard belonging to the house, which yard was sur-
rounded by adjoining buildings, and was altogether enclo-
sed, but the shop had no internal communication with the
house, had a door opening into the street, and its roof was
higher than that of the house, the workshop was holden to
be a parcel of the dwelling-house. — R. v. Chalking, R. &
R. 334. So, a warehouse which had a separate entrance
from the street, and had no internal communication with
the dwelling-house, with which it was occupied, but was
under the same roof, and had a back door opening into the
yard, into which the house also opened and which enclosed
both, was holden to be part of the dwelling-house. — R. v.
Lithgo, R. & R. 357. So, where in one range of buildings
the prosecutor had a warehouse and two dwelling-houses,
formerly one house, all of which had entrances into the
street, but had also doors opening into an enclosed yard
belonging to the prosecutor ; and the prosecutor let one of
the houses between his house and the warehouse together
with certain easements in the yard, it was holden that the
warehouse was parcel of the dwelling-house of the prose-
cutor ; it was so before the division of the house, and remain-
ed so afterwards. — R. v. Walters, 1 Moo. C. C. 13. And
where th j dwelling-house of the prosecutor was in the centre
of a space of about an acre of land, surrounded by a garden
360 LARCENY.
wall, the front wall of a factory, and the wall of the stable-
yard, the whole being the property of the prosecutor, who
used the factory, partly for his own business and partly in
a business in which he had a partner, and the factory open-
ed into an open passage, into which the outer door of the
dwelling-house also opened, it was holden that the factory
was properly described as the dwelling-house of the prose-
cutor.— R. v. Hancock, R. & R. 170. But a building sepa-
rated from the dwelling-house by a public thoroughfare
cannot be deemed to be part of the dwelling-house. — R. v.
Westwood, R. d R. 495. So neither is a wall, gate or
other fence, being part of the outward fence of the curti-
lage, and opening into no building but into the yard only,
part of the dwelling-house. — R. v. Bennett, R. & R. 289.
Nor is the gate of an area, which opens into the area only,
if there be a door or fastening to prevent persons from pass-
ing from the area into the house, although that door or
other fastening may not be secured at that time. — R. v.
Davis, R. & R. 322.
Where the building broken into was in the fold-yard of
the prosecutor's farm, to get to which from the house it
was necessary to pass through another yard called the pump-
yard, into which the back door of the house opened, the
pump-yard being divided from the fold-yard by a wall four
feet high, in which there was a gate, and the fold-yard being
bounded on all sides by the farm buildings, a wall from the
house, a hedge and gates, it was held that the building was
within the curtilage. — R. v. Gilhert, 1 G. & K. 84. See R.
v. Egginton, 2 Leach, 913 ; Archbold, 405.
Indictment. — a certain building of one J. N.,
situate feloniously did break and enter, the said
building then being within the curtilage of the dwelling-
house of the said J. N. there situate, and by the said J. N.
LARCENY. 361
then and there occupied therewith, and there being then
and there no communication between the said building and
the said dwelling-house, either immediate or by means of
any covered and enclosed passage leading from the one to
the other, with intent the goods and chattels of the said
J. N. in the said building then being, feloniously to steal,
take and cany away, and that the said J. S. then and
there, in the said building, one silver watch, of the goods
and chattels of the said J. N. feloniously did steal, take
and carry away, against the form
This count may be added to an indictment for burglary,
housebreaking or stealing in a dwelling-house to the amount
of twenty-five dollars, and should be added, whenever it
is doubtful whether the building is in strictness a dwelling-
house. If the evidence fail to prove the actual stealing,
but the breaking, entry and intent to steal be proved, the
prisoner may be convicted, under this indictment, of the
felony described in sect 42, post, as this indictment alleges
the intent as well as the act. — Archbold, 404.
Under sect. 183 of the Procedure Act, a verdict of guilty
of an attempt to commit the offence charged may be given
upon an indictment on this section, if the evidence war-
rants it.
Local description is necessary in the indictment. — R. v.
Bulloch, 1 Moo. C. C. 324, note a.
41. Every one who breaks and enters any dwelling-house, school.
house, shop, warehouse or counting-house, and commits any felony
therein, or being in any dwelling-house, school-house, shop, ware-
house or counting-house, commits any felony therein, and breaks out
of the same, is guilty of felony, and liable to fourteen years' impris-
onment.— 32-33 T'., c. 21, s. 55. 24-25 F., c. 96, s. 56, Imp.
The breaking and entering must be proved in the same
manner as in burglary, except that it need not be proved
362 , LARCENY.
to have been done in the night time. But if it be proved
to have been done in the night-time, so as to amount to
burglary, the defendant may, notwithstanding, be convicted
upon this indictment. — R. v. Pearce, R. & R. ] 74 ; R. v.
Robinson, R.&R. 321 ; Archbold, 399. And so, also, any
breaking and entering, which would be sufficient in a case
of burglary, would be sufficient under this section. Thus,
where the prisoner burst open an inner door in the inside
of a house, and so entered a shop, in order to steal money
from the till, it was held that this was a sufficient breaking
to support an indictment for housebreaking. — jR. v. Wen-
mouth, 8 Cox, 348. The value of the goods is immaterial,
if a breaking and entry be proved; but if proved and
alleged to be of the value of twenty-five dollars, the pris-
oner may be convicted of the felony described in sect. 45,
post ; if the prosecutor succeed in proving the larceny, but
fail in proving any of the other aggravating circumstances,
the defendant may be convicted of simple larceny. — Arch-
bold, 399. The same accuracy in the statement of the
ownership and situation of the dwelling-house is necessary
in an indictment for this offence as in burglary. But it
must be remembered that any error in these matters may
now be amended under the Procedure Act. — 2 Russ. 76.
Sec. 36, ante, applies to this clause, as well as the rules
which govern the interpretation of the words dwelling-
house in burglary. — 2 Russ. 76.
As in simple larceny, the least removal of the goods from
the place where the thief found them, though they are not
carried out of the house, is sufficient upon an indictment
for house-breaking. It appeared that the prisoner, after
having broken into the house, took two half-sovereigns out
of a bureau in one of the rooms, but being detected, he
$hrew them under the grate in that room ; it was held that
LARCENY. 363
if they were taken with a felonious intent, this was a suf-
ficient removal of them to constitute the offence. — R. v.
Amur, 6 C. & P. 344.
As to what is a shop under this section, it was once said
that it must be a shop for the sale of goods, and that a
mere workshop was not within the clause. — R. v. Sanders,
9 C. & P. 79 ; but in R. v. Carter, 1 C. & K. 173, Lord Den-
man, C. J., declined to be governed by the preceding case,
and held that a blacksmith's shop, used as a workshop only,
was within the statute. A warehouse means a place
where a man stores or keeps his goods, which are not im-
mediately wanted for sale. — R. v. Hill, 2 Russ. 95. Upon
an indictment for breaking and entering a counting-house,
owned by Gamble, and stealing therein, it appeared that
Gamble was the proprietor of extensive chemical works,
and tnat the prisoner broke and entered a building, part of
the premises, which was commonly called the machine-
house, and stole therein a large quantity of money. In
this building, there was a weighing machine, at which all
goods sent out were weighed, and one of Gamble's servants
kept in that building a book, in which he entered all goods
weighed and sent out. The account of the time of the men
employed in different departments was taken in that build-
ing and their wages were paid there ; the books in which
their time was entered were brought to that building for
the purpose of making the entries and paying the wages.
At other times, they were kept in another building called
the office, where the general books and accounts of the con-
cern were kept. It was objected that this was not a count-
ing-house ; but, upon a case reserved, the judges held that
it was a counting house within the statute. — R. v. Potter,
2 Den, 235.
An indictment for house-breaking is good, if it alleges
364 LARCENY.
that the prisoner broke and entered the dwelling-house,
and the goods of in the said dwelling-house then
and there being found, then and there (omitting " in the
said dwelling-house ") feloniously did steal, take and carry
away. — R. v. Andrews, C. & M . 121, overruling jR. v.
Smith, 2 M . & Rob, 115, which Coleridge, J., said Patte-
son, J., was himself since satisfied had been wrongly
decided. — 2 Russ. 76, note by Greaves.
Indictment. — the dwelling-house of J. N., situ-
ate feloniously did break and enter, with intent
the goods and chattels of the said J. N., in the said dwel-
ling-house then being, feloniously to steal, take and carry
away, and one dressing-case of the value of twenty-five
dollars, of the goods and chattels of the said J. N., then
in the said dwelling-house, then feloniously did steal, take
and carry away, against the form — Archbold, 398.
Upon the trial of an indictment for an offence under
this section, the jury may, under sect. 183 of the Procedure
Act, convict the defendant of an attempt to commit the
same, if the evidence warrants it. But they can only
convict of the attempt to commit the identical offence
charged in the indictment ; the prisoner was indicted for
breaking and entering a dwelling-house, and stealing
therein certain goods specified in the indictment, the pro-
perty of the prosecutor. It was proved at the trial that, at
the time of the breaking, the goods specified were not in
the house, but there were other goods there, the property
of the prosecutor ; the prisoner had not had time to steal
anything, having been caught immediately after his
entering the house. The jury acquitted the prisoner of
the felony charged, but found him guilty of breaking and
entering the dwelling-house of the prosecutor, and
attempting to steal his goods therein. Held, that the con-
LARCENY. 365
viction was wrong, and that an attempt must be to
do that which, if successful, would amount to the felony
charged. — R. v. McPherson, Dears. & B. 197. As
said in Archbold, 399, the prisoner, under such circum-
stances, may be convicted of breaking and entering with
intent to commit a felony, under sect. 42, post. But only
if, as in the form above given, the intent is alleged, which
was not the case in R. v. McPherson, ubi supra.
Local description necessary in the indictment. — R. v.
Bullock, 1 Moo. C. C. 324, note a.
42. Every one who breaks and enters any dwelling-house, church,
chapel, meeting-house or other place of divine worship, or any build-
ing within the curtilage, or school-house, shop, warehouse or counting-
house, with intent to commit any felony therein, is guilty of felony,
and liable to seven years' imprisonment. — 32-33 V., c 21, s. 56. 24-25
T\, c. 96, *. 57, Imp.
See sec- 193 of Procedure Act.
Indictment — on the dwelling-house of
J. N., situate feloniously did break and enter, with
intent to commit a felony therein, to wit, the goods and
chattels of the said J. N., in the said dwelling-house there
being, then feloniously to steal, take and carry away
against the form of the statute is such case made and
provided. — Archbold, 403.
Where there is only an attempt, it is not always possible
to say what goods the would-be thief meant to steal, and
an indictment for an attempt to commit larceny need not
specify the goods intended to be stolen. — R. v. Johnson,
L. & C. 489.
Upon an indictment under this section the prisoner
may be convicted, undar sec. 183 of the Procedure Act, of
the misdemeanor of attempting to commit the felony
charged.— R. v. Bain, L. & C. 129.
Greaves says : " This clause is new, and contains a very
366 LAKCENY.
important improvement in the law. Formerly the offence
here provided was only a misdemeanor at common law.
Now it often happened that such an offence was very
inadequately punished as a misdemeanor, especially since
the night was made to commence at nine in the evening ;
for at that time, in the winter, in rural districts, the poor
were often in bed. Nor could anything be much more
unreasonable than that the same acts done just after nine
o'clock at night should be liable to penal servitude for life,
but if done just before nine they should only be punishable
as a misdemeanor. It is clear that if, on the trial of an
indictment for burglary, with intent to commit a felony, it
should appear that the breaking and entry were before
nine o'clock, the prisoner might be convicted under this
clause. But upon an indictment in the ordinary form
for house-breaking, the prisoner could not be convicted
under this clause, because it does not allege an intent to
commit a felony (as in McPherson's case, ante, under last
preceding section). It will be well, however, to alter the
form of these indictments, and to allege a breaking and
entry with intent to commit some felony, in the same
manner as in an indictment for burglary with intent to
commit felony, and then to allege the felony that is sup-
posed to have been committed in the house. If this be
done, then, if the evidence fail to prove the commission of
that felony, but prove that the prisoner broke and entered
with intent to commit it, he may be convicted under this
clause."
The form of indictment given under the last preceding
section is in conformity with these remarks.
Under any indictment under this section, it is no defence
that the prosecution has proved a burglary.— Sect. 194
Procedure Act.
LARCENY. 367
Local description necessary in the indictment. — _R. v.
Bulled; 1 Moo. C. C. 324. Note a.
43. Even* one who is found by night armed with any dangerous
or offensive weapon or instrument whatsoever, with intent to break
or enter into any dwelling-house or other building whatsoever, and
to commit any felony therein, or is found by night having in his
possession, without lawful excuse, — the proof of which excuse shall
lie on him — any picklock key, crow, jack, bit or other implement of
house-breaking, or any match or combustible or explosive substance,
or is found by night having his face blackened or otherwise disguised,
with intent to commit any felony, or is found by night in any dwelling-
house or other building whatsoever, with intent to commit any felony
therein, is guilty of a misdemeanor, and liable to three years' impris-
onment.—32-33 V.,c. 21, s. 59. 24-25 V., c. 96, s. 58, Imp.
44. Every one who, having been convicted of any such mis-
demeanor as in the next preceding section mentioned, or of any felony,
commits any such misdemeanor, is liable to ten years' imprisonment.
—32-33 V.,"c 21, s. 60. 24-25 Vn c 96, s. 59, Imp.
The distinction between this clause and sect. 39, as far
as relates to being in a dwelling-house with intent to
commit a felony, is this, that under the previous section
the entry must be proved to have been in the night, but
under this clause, proof that the prisoner was in the
dwelling-house by night with the intent to commit felony
is enough, and it is unnecessary to prove whether he
entered by day or by night.
Indictment for being found by night armed, with
intent, etc. — The Jurors for Our Lady the Queen upon
their oath present, that J. S., on about the
hour of eleven in the night of the same day, at was
found unlawfully armed with a certain dangerous and
offensive instrument, that is to say, a crow-bar, with intent
then to break and enter into a certain dwelling-house of
A. B., there situate, and the goods and chattels in the said
dwelling-house then being, feloniously to steal take and
368 LARCENY.
carry away, against the form of the statute in such case
made and provided, and against the peace of Our Lady the
Queen, her crown and dignity. — Archbold, 501.
It is not necessary to aver that the goods and chattels
were the property of any particular person. — R. v. Lawes,
1G.SK.Q2; R. v. Nicholas, 1 Cox, 218 ; R. v. Clarke,
1C.&K. 421.
See, ante, sect. 2, as to the interpretation of the word
" night."
In R. v. Jarrald, L. <& C. 301, it was held, upon a case
reserved, that an indictment under this section, for being
found by night armed with a dangerous and offensive
weapon and instrument, with intent to break and enter
into a building, and commit a felony therein, must specify,
as in burglary, the building to be broken into. Crompton,
J., was of opinion that the particular felony intended must
also be specified.
On this case, Greaves, 2 Russ. 70, note g., says :
" With all deference it is submitted that this decision is
clearly erroneous. The ground on which Cockburn, C. J.,
rests the decision of the first point (as to a particular house
to be specified) is answered by the second clause of the
same section ; for, under it, the mere possession, without
lawful excuse, of any instrument of house-breaking in the
ni»ht. constitutes the offence without any intent to commit
any felony at all ; (see post, as to this part of the clause)
and this offence is plainly one step further from the attempt
to commit a felony than where the intent to commit some
felony exists, though the particular felony is not yet,
Axed As to the rules of criminal pleading, these
seem, in this case, to have been misconceived. It is quite
a mistake to suppose that these rules require the specifi-
cation of particulars where it is impracticable to specify
LARCEXV. 369
them. Wherever this is the case the rules allow general
or other statements instead It cannot be doubted
that this decision, instead of promoting the object of the
Act in this respect, is substantially a repeal of it, for it is
hardly conceivable that, in the majority of cases, it will
be possible to prove an intent to commit any particular
felony
To this, Cave answers, (3 Burn, 252, note a) :
" But a close consideration of the statute appears
to confirm it (the decision in Jarrald's Case) : it may well
be that in all the other cases except " having implements
of house-breaking " an intent must be clearly proved ; for
the u being armed with a dangerous weapon" or " having
the face blacked " or " being by night in a dwelling-house "
are clearly no offences unless done for a felonious purpose,
and the very essence of the offence is such felonious purpose
But, with regard to " having instruments of house-break-
ing," the statute implies the intent from the nature of the
instrument, and throws the proof of innocence upon the
prisoner. The general intention of the statute is thus well
carried out ; for if a man be found by night anywhere with
house-breaking implements, or such as the jury shall think
he intended to use as such, he may be indicted for that
offence. — R. v. Oldham, 2 Den. 472, post. But if he has
not any house-breaking implements, but is " armed with
a dangerous weapon" not usable for house-breaking, or
has " his face blacked " oris " in a dwelling-house " without
instruments of house-breaking, then the particular intent
must be laid and proved as laid."
Indictment for having in possession, by night, imple-
ments of house-breaking. — on about the
hour of eleven in the night of the same day, at was
found, he the said (defendant) then and there, by night
z
370 LAECENY.
as aforesaid, unlawfully having in his possession, without
lawful excuse, certain implements of house-breaking, that
is to say, two crows, three jacks and one bit against the
form — Archbold, 502.
It seems that local description is necessary. — R. v. Jar-
raid, L. & C. 301.
Any instrument, capable of being used for lawful pur-
poses is within the statute, if the jury find that such
instrument may also be used for the purposes of house-
breaking, and that the prisoner intended to use it as an
implement of house-breaking, when found, at night, in
possession of it. — R. v. Oldham, 2 Den. 472.
Where, on an indictment for having in possession without
lawful excuse certain implements of house-breaking, the
jury found the prisoners guilty of the possession without
lawful excuse, but that there was no evidence of an intent
to commit a felony, and the indictment omitted the words
" with intent to commit a felony,'' it was held that the
omission did not render the indictment bad, and that it
was not necessary to prove an intent to commit a felony.
R. v. Bailey, Dears. 244.
Indictment for being found by night with a dis-
guised face with intent to commit felony Somerset-
shire (to wit.) — The Jurors for Our Lady the Queen upon
their oath present that on the first day of May, in the year
of our Lord 1852, about the hour of eleven in the night of
the same day, at the parish of Swindon, in the county of
Somerset, A. B. was found by night as aforesaid then and
there having his face blackened (blackened or otherwise
disguised), with intent then and there by night as afore-
said feloniously, wilfully, and of his malice aforethought,
to kill and murder one C. D. (to commit any felony).
Indictment for being found by night in a house with
LARCENY. 371
intent to commit a felony therein Yorkshire (to
wit.) — The Jurors for Our Lady the Queen upon their oath
present, that on the first day of May, in the year of our
Lord 1852, about the hour of eleven in the night of the
the same day, at the parish of Filey, in the county of
York, A. B. was found by night as aforesaid in the
dwelling-house (dwelling-house or other building what-
soever) of one C. D., there situate, with intent then and
there by night as aforesaid in the said dwelling-house felo-
niously to steal, take, and carry away the goods and
chattels of the said C. D. then and there being in the said
dwelling-house (to commit any felony therein.)
In R. v. Thompson, 11 Cox, 362, held, that where
several persons are found out together by night, for the
common purpose of house-breaking, and one only is in
possession of house-breaking implements, all may be found
guilty of the misdemeanor created by this section, for the
possession of one is in such case the possession of all.
STEALING IN THE HOUSE.
45. Every one who steals in any dwelling-house any chattel,
money or valuable security, to the value in the whole of twenty-five
dollars or more, is guilty of felony, and liable to fourteen years'
imprisonment.— 32-33 V., c. 21, s. 61. 24-25 V., c. 96, s. 60, Imp.
As to the meaning of the words " valuable security."
See, ante, sect. 2.
Local description necessary in the indictment. — R. v.
Napper, 1 Moo. C. C. 44.
Indictment one silver sugar basin, of the value
of twenty-five dollars, of the goods and chattels of A. B., in
the dwelling-house of the said A. B., situate felo-
niously did steal, take and carry away, against the form
—Archbold, 401.
If no larceny is proved the defendant must of course be
372 LARCENY.
acquitted altogether, except if the jury should find him
guilty of the attempt to commit the offence charged, under
sec. 183 of the Procedure Act, but the jury could not find
him guilty of an attempt to commit simple larceny. — R.
v. McPherson, Dears. & B. 197. See supra, under sect. 41.
The word " dwelling -house " has the same meaning as
in burglary and sec. 36, ante. If the proof fails to prove
the larceny to have been committed in a dwelling-house
or in the dwelling-house described, or that the value of the
things stolen at any one time amounts to twenty-five
dollars, the defendant must be acquitted of the compound
offence, and may be found guilty of the simple larceny
only. — Archbold, 402.
The goods must be stolen to the amount of twenty-five
dollars or more at one and the same time. — R. v. Petrie,
1 Leach, 294; R. v. Hamilton, 1 Leach, 348 ; 2 Russ. 85.
It had been held in several cases that, if a man steal the
goods of another in his own house, R. v. Thompson, R. v.
Gould, 1 Leach, 338, it is not within the statute, but these
cases appear to be overruled by K. v. Bowden, 2 Moo. C.C.
285. Bowden was charged with having stolen Seagall's
goods, in his, Bowden's, house, and having been found
guilty, the conviction was affirmed. Where a lodger
invited an acquaintance to sleep at his lodgings, without
the knowledge of his landlord, and, during the night,
stole his watch from his bed's head, it was doubted
at the trial whether the lodger was not to be considered
as the owner of the house with respect to the prosecutor ;
but the judges held that the defendant was properly con-
victed of stealing in the dwelling-house of the landlord ;
the goods were under the protection of the dwelling-
house. — R. v. Taylor, R. & R. 418. If the goods be
under the protection of the person of the prosecutor, at
LARCENY. 373
the time they were stolen, the case will not be within
the statute ; as, for instance, where the defendant pro-
cured money to be delivered to him for a particular pur-
pose and then ran away with it. — R. v. Campbell, 2
Leach, 564, and so, where the prosecutor, by the trick of
ring-dropping, was induced to lay down his money upon
the table, and the defendant took it up and carried it
away. — R. v. Owen, 2 Leach, 572. For a case to be
within the statute, the goods must be under the protec-
tion of the house. But property left at a house for a
person supposed to reside there, will be under the pro-
tection of the house, within the statute. Two boxes
belonging to A., who resided at 38 Kupert street, were
delivered by a porter, whether by mistake or design did
not appear, at No. 33 in the same street ; the owner of
the house imagining that they were for the defendant
who lodged there, delivered them to him ; the defendant
converted the contents of the boxes to his own use, and
absconded ; it was doubted at the trial whether the goods
were sufficiently within the protection of the dwelling-
house to bring the case within the statute, but the judges
held that they were. — R. v. Carroll, 1 Moo. C.C. 89. If one
on going to bed put his clothes and money by the bedside,
these are under the protection of the dwelling-house
and not of the person ; and the question whether goods
are under the protection of the dwelling-house, or in the
personal care of the owner, is a question for the court,
and not for the jury. — R. v. Thomas, Carr. Sup}). 295.
So where a man went to bed with a prostitute, having
put his watch in his hat on a table, and the woman
stole the watch while he was asleep ; this was held to be
a stealing in a dwelling-house, and not a stealing from the
person. — R. v. Hamilton, 8 C. & P. 49. But if money
374 LARCENY.
be stolen from under the pillow of a person sleeping
in a dwelling-house, this is not stealing in the dwelling-
house within the meaning of the Act. — 2 Muss. 84. In
ascertaining the value of the articles stolen, the jury may
use that general knowledge which any man can bring to
the subject, but if it depends on any particular knowledge
of the trade by one of the jurymen, this juryman must be
sworn and examined as a witness. — R. v. Rosser, 7 G. <Ss
P. 648.
46. Every one who steals any chattel, money or valuable security
in any dwelling-house, and by any menace or threat puts any one
therein in bodily fear, is guilty of felony, and liable to fourteen years'
imprisonment.— 32-33 F., c. 21, s. 62. 24-25 V., c. 96, s. 61, Imp.
The indictment must expressly allege that some person
in the house was put in fear by the defendant. — R. v.
Etherington, 2 Leach, 671.
Sect. 36, ante, and the observations under the head
" Burglary " upon questions which may arise as to what
shall be deemed a dwelling-house, will apply to the
offence under this clause. — 2 Russ. 78.
The value, if amounting to twenty-five dollars, had
better always be inserted, as then, if no menace or threat,
or no person in the house being put in fear, are proved,
the defendant may be convicted of stealing in the dwell-
ing-house to the value of twenty-five dollars, under sect.
45. If there is no proof of a larceny in a dwelling house,
or the dwelling-house alleged, or if the goods stolen are
not laid and proved to be of the value of twenty-five
dollars, the defendant may still be convicted of simple
larceny, if the other aggravating circumstances are not
proved.
The value is immaterial, if some person was in the
house at the time, and was put in bodily fear by a menace
LARCENY. 3T5
or threat of the defendant, which may be either by words
or gesture. — R. v. Jackson, 1 Leach, 267.
It is clear that no breaking of the house is necessary to
constitute this offence ; and it should seem that property
might be considered as stolen in the dwelling-house
within the meaning of the statute, if a delivery of it out
of the house should be obtained by threats, or an assault
upon the house by which some persons therein should be
put in fear. But questions of difficulty may perhaps
arise as to the degree of fear which must be excited by
the thief. Where, however, the prosecuter in consequence
of the threat of an armed mob, fetched provisions out of
his house and gave them to the mob, who stood outside
the door, this was holden not to be a stealing in the dwell-
ing-house.— R. v. Leonard, 2 Rum 78. But Greaves adds :
" It is submitted with all deference that this decision is
erroneous ; the law looks on an act done under the compul-
sion of terror as the act of the person causing that terror just
as much as if he had done it actually with his own hands.
Any asportation, therefore, of a chattel under the effects
of terror is in contemplation of law the asportation of the
party causing the terror." — Note g, 2 Russ.. loc. cit. If
so, in Leonard's case, suppose the prisoner had been taken
up by the police just before the prosecutor gave him the
provisions, and as he, the prosecutor, was coming with
them towards the prisoner, under the influence of terror,
the offence would have been larceny, according to
Greaves, as the asportation by the prosecutor was in law
the asportation of the prisoner; this would be going far.
To this remark, in the first edition of this work, Greaves
replied : " When an offence is committed through the agency
of an innocent person, the employer, though absent when
the act is done, is answerable as principal. — 1 Russ. 53;
376 LARCENY.
Kel. 52, If a madman, or a child not at years of discretion,
commits murder or other felony on the incitement of
another, the latter, though absent, is guilty as principal ;
otherwise he would be wholly unpunishable. — Fost. 349.
Every act done by an innocent agent is in point of law exactly
the same as if it were done at the same time and place by
the employer. In burglary, if a man in the night breaks a
window and inserts an instrument through the hole, and
draws out any chattel, he is not only guilty of burglary
with intent to steal, but of burglary and stealing in the
house. The amotion by the instrument is the same as if
it were by the prisoner's hand. Now, an innocent agent
is merely the living instrument (Efiipvxov opyavov. Arist.
Eth. 8, c. 13) of the employer. Then it is clear that any
terror, which is sufficient to overpower a reasonably firm
mind, will make an innocent agent ; and the threats of an
armed mob to a single individual are certainly sufficient
to constitute such terror. In Leonard's case, therefore,
the prosecutor was an innocent agent ; and the moment
he asported any of the provisions in the house a single
inch, a larceny was committed in the house ; and that was
a larceny by the prisoner, for the prosecutor was his
innocent agent. In the case put, therefore, the prisoner
was guilty of larceny, though he never had the provisions ;
just as the inciter of an innocent agent is guilty of murder,
though he may be miles off when the murder is committed.
The rule as to innocent agency is exactly the same,
whether the offence consists of an asportation, as in
larceny, or of a single act, as in murder, by stabbing or
shooting. The act is the act of the inciter in every case
alike."
Obtaining money from any one by frightening him is
larceny.— E. v. Lovell, 8 Q. B. D. 185.
LARCENY. 377
It does not appear to have been expressly decided by the
repealed statute whether or not it was necessary to prove
the actual sensation of fear felt by some person in the
house, or whether fear was to be implied, if some person in
the house were conscious of the fact at the time of the
robbery. But it was suggested as the better opinion, and
was said to have been the practice, that proof should be
given of an actual fear excited by the fact, when committed
out of the presence of the party, so aa not to amount to a
robbery at common law. And it was observed that where the
fact was committed in the presence of the party, possibly
it would depend upon the particular circumstances of the
transaction, whether fear would or would not be implied ;
but that clearly, if it should appear that the party in
whose presence the property was taken was not conscious
of the fact at the time, the case was not withiu that
statute. But now, by the express words of the statute, the
putting in fear must have been by an actual menace or
threat.— 2 Ruas. 79 ; Archbold, 401.
A person outside a house may be a principal in the
second degree to menaces used in the house ; menaces used
out of the house may be taken into consideration with
menaces used in the house. — R. v. Murphy, 6 Cox, 340.
Upon the trial of any offence mentioned in this section
the jury may, under sec. 183 of the Procedure Act, convict
of an attempt to commit such offence. — 2 Russ. 81.
Indictment. — one silver basin (of the value of
twenty-Jive dollars) of the goods and chattels of J. N., in
the dwelling-house of the said J. N., situate felo-
niously did steal, take and carry away ; one A. B. then, to
wit, at the time of the committing of the felony afore-
said being in the said dwelling-house, and therein by the
said (defendant) by a certain menace and threat
378 LARCENY.
then used by the said (defendant) then being put
in bodily fear, against the form — Archbold. (As
to value, see ante.)
Local description necessary in the indictment. — R. v.
Napper, 1 Moo. 0. G. 44.
STEALING IN MANUFACTORIES.
47. Every one who steals to the value of two dollars, any woollen,
linen, hempen or cotton yarn, or any goods or articles of silk, woollen,
linen, cotton, alpaca or mohair, or of any one or more of such
materials mixed with each other or mixed with any other material,
whilst laid, placed or exposed, during any stage, process or progress
of manufacture, in any building, field or other place, is guilty of
felony, and liable to fourteen years' imprisonment. — 32-33 V., c- 21,
s. 63. 24-25 V., c. 96, s. 62, Imp.
If you prove the larceny, but fail to prove the other
circumstances so as to bring the case within the statute,
the defendant may be found guilty of the simple larceny
only. — Archbold, 407.
Goods remain in " a stage, process or progress of manu-
facture,'' though the texture be complete, if they be not
yet brought into a condition fit for sale. — R. v. Woodhead,
1 M. &Rob. 549. See R. v. HugiU, 2 Buss. 517; R,
v. Dixon, R. & R. 53.
Upon the trial of any offence mentioned in this section,
the jury may, under sect. 183 of the Procedure Act, con-
vict the prisoner of an attempt to commit the same. — 2
Russ. 518.
Indictment. — on thirty yards of linen
cloth, of the value of four dollars, of the goods and chattels
of J. N., in a certain building of the said J. K, situate
feloniously did steal, take and carry away, whilst
the same were laid, placed and exposed in the said building,
during a certain state, process and progress of manufacture,
LARCENY. 379
against the form of the statute in such case made and pro-
vided. (Other counts may be added, stating thv particular
process and progress of manufacture in which the goods
were when stolen.) — Archbold.
48. Every one who, having been intrusted for the purpose of
manufacture or for a special purpose connected with manufacture, or
employed to make any felt or hat, or to prepare or work up any
woollen, linen, fustian, cotton, iron, leather, fur, hemp, flax or silk,
or any such materials mixed with one another, or having been so
intrusted, as aforesaid, with any other article, materials, fabric or
thing, or with any tools or apparatus for manufacturing the same,
sells, pawns, purloins, secretes, embezzles, exchanges or otherwise
fraudulently disposes of the same, or any part thereof, when the
offence is not within the next preceding section, is guilty of a mis-
demeanor, and liable to imprisonment for any term less than two
years.— 32-33 F, c. 21, s. 64. 6-7 F, c. 40, s. 2, Imp.
STEALING FROM SHIPS, WHARVES, ETC. -
49. Every one who steals any goods or merchandise in any vessel,
barge or boat of any description whatsoever, in any haven or in any
port of entry or discharge, or upon any navigable river or canal, or
in any creek or basin belonging to or communicating with any such
haven, port, river or canal, or steals any goods or merchandise from
any dock, wharf or quay, adjacent to any such haven, port, river,
canal, creek or basin, is guilty of felony, and liable to fourteen years'
imprisonment.— 32-33 F, c. 21, *, 65. 24-25 F., c. 96, s. 63, Imp.
Indictment for stealing from a vessel on a navigable
river on twenty pounds weight of indigo
of the goods and merchandise of J. N., then being in a
certain ship called the Rattler upon the navigable river
Thames, in the said ship, feloniously did steal, take and
carry away, against the form — Archbold.
Indictment for stealing from a dock. — on
twenty pounds weight of indigo of the goods and
merchandise of J. M., then being in and upon a certain
dock adjacent to a certain navigable river called the
Thames, from the said dock, feloniously did steal, take
and carry away, against the form — Archbold.
380 LARCENY,
The value is immaterial, and need not be laid. If the
prosecutor fails to prove any of the circumstances neces-
sary to bring the case within the statute, but proves a
larceny, the defendant may be convicted of the simple
larceny. — Archbold.
The construction of the repealed statute was generally
confined to such goods and merchandise as are usually
lodged in ships, or on wharves or quays ; and therefore
where Grimes was indicted on this statute for stealing a
considerable sum of money out of a ship in port, though
great part of it consisted in Portugal money, not made
current by proclamation, but commonly current; it was
ruled not to be within the statute. — R. v. Grimes, Fost.
79 ; R. v. Leigh, 1 Leach, 52. The same may be said of
the present statute, by reason of the substitution of the
words " goods and merchandise " for the words " chattel,
money or valuable security " which are used in other
parts of the Act." — Archbold.
It would not be sufficient, in an indictment for stealing
goods from any vessel on a certain navigable river to
prove in evidence that the vessel was aground in a dock
in a creek of the river, unless the indictment were
amended. — R. v. Pike, 1 Leach, 317. The words of the
statute are " in any vessel," and it is therefore immaterial
whether the defendant succeeded in taking the goods
from the ship or not, if there was a sufficient asportation
in the ship to constitute larceny. — 3 Bum, 254.
The words of the statute are " from the dock," so that,
upon an indictment for stealing from a dock, wharf, etc.,
a mere removal will not suffice ; there must be an
actual removal from the dock, etc. — Archbold, 409.
A man cannot be guilty of this offence in his own
ship. — R. v. Madox, R. & R. 92 ; but see R. v. Bowden,
LARCENY. 381
2 Moo. C. C. 285. And now, sect. 4, ante, would apply-
to such a case, being larceny by a bailee.
The luggage of a passenger going by steamer is within
the statute. The prisoners were indicted for stealing
a portmanteau, two coats and various other articles, in a
vessel, upon the navigable River Thames, The property
in question was the luggage of a passenger going on board
the Columbian steamer from London to Hamburg ; and it
was held that the object of the statute was to protect
things on board a ship, and that the luggage of a passen-
ger came within the general description of goods. — R. v.
Wi-ight, 7 C. & P. 159.
Upon an indictment for any offence mentioned in this
section, the jury may convict of an attempt to commit the
same, under sec. 183 of the Procedure Act if the evidence
warrants it. — 2 Russ. 381.
STEALING THINGS UNDER SEIZURE.
50. Every one who, whether pretending to be the owner or not,
secretly or openly, and whether with or without force or violence,
takes or carries away, or causes to be taken or carried away, without
lawful authority, any property under lawful seizure and detention,
steals such property, and is guilty of felony and liable to be punished
accordingly.— 43 V., c. 28, s. 66, parL 46 F., c. 17, s. 67. C. S. C,
c 23, s. 10.
This is a new enactment. It is an extension of statutes
relating to Indians and to timber seized by Crown officers.
— At common law, a man may be guilty of larceny by
taking his own goods in custodid legis. — 2 Bishop. Cr.
Proc. 749.
STEALING OR EMBEZZLEMENT BY CLERKS OR SERVANTS OR
PERSONS IN THE PUBLIC SERVICE.
51. Every one who, being a clerk or servant, or being employed
for the purpose or in the capacity of a clerk or servant, steals any
382 LARCENY.
chattel, money or valuable security belonging to or in the possession
or power of his master or employer, is guilty of felony, and liable to
fourteen years' imprisonment — 32-33 V., c. 21, s. 69. 24-25 V., c. 96,
s. 67, Imp.
As to what is a " valuable security," see, ante, sect. 2.
See next section, and the cases there cited.
Indictment — on was clerk to J. N".,
and that the said J. S., whilst he was such clerk to the
said J. N. as aforesaid, to wit, on the day and year aforesaid,
certain money to the amount of forty dollars, ten yards of
linen cloth, and one hat, of and belonging to the said J.
N., his master, feloniously did steal, take and carry away,
against the form of the statute in such case made and
provided, and against the peace of Our Lady the Queen,
her crown and dignity. — Archbold.
If the defendant is not shown to be the clerk or ser-
vant of J. N. but a larceny is proved, he may be con-
victed of the larceny merely. — Archbold, 348 ; M. v.
Jennings, Dears. & B. 447. It is not necessary by the
statute that the goods stolen should be the property of
the master ; the words of the statute are, belonging to, or
in the possession or power of the master. A second
count stating the goods "then being in the possession
and power " of the master may be added. If it appear
that the money, etc., was received by the clerk for
and on account of his master, and was not received
into the possession of the master otherwise than by the
actual possession of the clerk so as not to amount to larceny
but to embezzlement, the defendant is nevertheless not
entitled to be acquitted, but the jury may return as their
verdict that the defendant was not guilty of larceny, but
was guilty of embezzlement and thereupon he shall be
liable to be punished in the same manner as if he had
been convicted on an indictment for embezzlement ; but
LARCENY. 383
he cannot be afterwards prosecuted for embezzlement on
the same facts. Sec. 195 Procedure Act.
Upon the trial of any offence under this section, the
jury, if the evidence warrants it, may convict of an
attempt to commit the same, under sec. 183 of the Pro-
cedure Act.
As to what is sufficient evidence of an attempt to steal,
see It. v. Cheeseman, L. <& C. 140.
On an indictment for larceny as servants, the evidence
showed that the complainant advanced money to the pris-
oners to buy rags, which they were to sell to the complain-
ant at a certain price, their profit to consist in the differ-
ence between the rate they could buy the rags, and this
fixed price. The prisoners consumed the money in drinks
and bought no rags : Held, no larceny. — R. v. Charest, 9
L. N. 114.
52. Every one who, being a clerk or servant, or being employed
for the purpose or in the capacity of a clerk or servant, fraudulently
embezzles any chattel, money or valuable security, or any part thereof,
delivered to or received or taken into possession by him, for or in the
name or on the account of his master or employer, feloniously steals
the same from his master or employer, although such chattel, money
or security was not received into the possession of such master or
employer, otherwise than by the actual possession of his clerk,
servant or other person so employed, and is liable to fourteen years'
imprisonment.— 32-33 V., c. 21, s. 70. 24-25 V., c. 96, s. 68, Imp.
See sec. 195 of Procedure Act, and E. v. De Banks, 15
Cox, 450.
It was the prisoner's duty as a country traveller to
collect moneys and remit them at once to his employers.
On the 18th of April, he received money in county. On the
19th and 20th, he wrote to his employers not mentioning
that he had received the money ; on the 21st, by another
letter, he gave them to understand that he had not received
384 LARCENY.
the money. The letters were posted in county Y. and
received in county M. Held, that the prisoner might be
tried in county M. for the offence of embezzling the money.
— R. v. Rogers, 14 Cox, 22.
Embezzlement is the appropriation to his own use by a
servant or clerk of money or chattels received by him for
or on account of his master or employer. Embezzlement
differs from larceny in this, that in the former the property
misappropriated is not at the time in the actual or legal
possession of the owner, whilst in the latter it is. The dis-
tinctions between larceny and embezzlement are often
extremely nice and subtle ; and it is sometimes difficult to
say under which head the offence ranges.
Greaves says : " The words of the former enactments
were "shall by virtue of such employment receive or
take into his possession any chattel, etc., for, or in the
name, or on the account of his master." In the present
clause, the words " by virtue of such employment " are
advisedly omitted in order to enlarge the enactment, and
get rid of the decisions on the former enactments. The
clause is so framed as to include every case where any
chattel, etc., is delivered to, received or taken possession
of by the clerk or servant, for or in the name or on
account of the master. If therefore a man pay a servant
money for his master, the case will be within the statute,
though it was neither his duty to receive it, nor had he
authority to do so; and it is perfectly just that it should
be so ; for, if my servant receive a thing, which is delivered
to him for me, his possession ought to be held to be my
possession just as much as if it were in my house or in my
cart. And the effect of this clause is to make the posses-
sion of the servant the possession of the master wherever
any property comes into his possession within the terms of
LARCENY. 385
this clause, so as to make him guilty of embezzlement, if
he converts it to his own use. The cases of R. v. Snoidey,
4 C. & P. 390 ; Crow's Case, 1 Lenin, 88 ; R. v. Thorley, 1
Moo. C. C. 343 ; R. v. Eawiin, 7 C. <£• P. 281 ; P. x.Mellish,
R. ct- i2. 80, and similar cases are consequently no author-
ities on tins clause. It is clear tha.t the omission of the
words in question, and the change in the terms in this
clause render it no longer necessary to prove that the
property was received by the defendant by virtue of his
employment ; in other words that it is no longer necessary
to prove that the defendant had authority to receive it "
Greaves adds : Mr. Davis says " still it must be the mas-
ter's money which is received by the servant, and not
mouey wrongfully received by the servant by means of
false pretences or otherwise : " this is plainly incorrect.
A.'s servant goes to B., who owes A. .£10, and falsely
states that A. has sent him for the money, whereupon B.
pays him the money. This case is clearly within the clause ;
for the money is delivered to and received and taken into
possession by him for and in the name and on the account
of Ins master, so that the case comes within every one of
the categories of the clause, and if it came within any one
it would suffice ; in fact, no case can be put where property
is delivered to a servant for his master that does not come
within the clause, and it is perfectly immaterial what the
moving cause of the delivery was. — Greaves, Cons. Acts,
156.
In larceny a wrongful taking is essential, whilst in em-
bezzlement the offence consists in some actual fraudulent
appropriation of that which is not unlawfully in the
possession of the offender. — Cr. Law Com. ithRep. LV,
LX XVIII.
By sect. 195 of the Procedure Act, it would seem that
386 LARCENY.
the distinction, often so difficult to establish, between lar-
ceny and embezzlement, is no more of practical importance
as, if upon an indictment for embezzlement, a larceny is
proved, the jury shall be at liberty to return a verdict of
guilty of larceny, and vice versa. But practically, this dis-
tinction has still to be made, as the jury must specify by
their verdict, of which special offence they find the defen-
dant guilty; and, if, for instance, upon an indictment for
larceny, the jury return a general verdict of guilty, when
the evidence proves an embezzlement and not a larceny,
the conviction will be illegal. — R. v. Qorbutt, Dears. <&
B. 166 ; R. v. Betts, Bell, G. C. 90 ; Broom's Comment
973 ; Stephens Cr. L. XL. See Rudge's Case, 13 Cox, 17.
Indictment. — The Jurors for Our Lady the Queen upon
their oath present, that J. S., on being then employed
as clerk to A. B., did then, and whilst he was so employed
as aforesaid, receive and take into his possession certain
money to a large amount, to wit, to the amount of
for and in the name and on the account of the said A. B.,
his master, and the said money then fraudulently and felo-
niously did embezzle ; and so the jurors aforesaid upon
their oath aforesaid do say that the said J. S. then, in the
manner and form aforesaid, the said money, the property
of the said A. B., his said master, from the said A. B. his
said master feloniously did steal, take and carry away,
against the form
If the defendant has been guilty of other acts of embez-
zlement within the period of six months against the same
master, the same, not exceeding three in number, may be
charged in the same indictment in separate counts, (s. Ill
of Procedure Act,) as follows: And the jurors aforesaid,
upon their oath aforesaid, do further present, that the said
J. S., afterwards, and within six calendar months from the
LARCENY. 387
time of the committing of the said offence in the first count
of this indictment charged and stated, to wit, on in
the year aforesaid, being then employed as clerk to the
said A. B., did then, and whilst he was so employed as last
aforesaid, receive and take into his possession certain
other money to a large amount, to wit, to the amount of
for and in the name and on the account of the said
A. B., his said master, and the said last mentioned money
then, and within the said six calendar months, fraudulently
and feloniously did embezzle ; aud so the jurors aforesaid
upon their oath aforesaid, do say, that the said J. S. then,
in manner and form aforesaid, the said money, the property
of the said A. B., his said master, from the said A. B., his
said master, feloniously did steal, take and carry away,
against the form (And so, on for a third count, if
req u i red.) — Arehbold.
The indictment must show by express words that the
different sums were embezzled within the six months. —
R. v. Noake, 2 C. & K. 620 ; R. v. Purchase, C. & M.
617. — It was the duty of the defendant, an agent and
collector of a coal club, to receive payment, by small
weekly instalments, and to send in weekly accounts on
Tuesdays, and on each Tuesday to pay the gross amount
received into the bank to the credit of the club ; the defen-
dant was a shareholder and co-partner in the society, and
indicted as such ; the indictment charged him with three
different acts of embezzlement during six months : each
amount as charged was proved by the different payments
of smaller sums, making altogether each amount charged;
held, that the indictment might properly charge the
embezzlement of a gross sum and be proved by evidence
of smaller sums received at different times by the prisoner,
and that it was not necessary to charge the embezzlement
388 LARCENY.
of each particular sura composing the gross sum, and that,
although the evidence might show a large number of small
sums embezzled, the prosecution was not to be confined to
the proof of three of such small sums only. — R. v. Balls,
12 Cox, 96 ; R. v. Furneaux, R. & R. 325 ; R. v. Flower,
8 D. & R. 512 ; R. v. Tyers, R. & R. 402, holding it
necessary in all cases of embezzlement to state specifically
in the indictment some article embezzled, are not now law,
as now by sec. Ill of the Procedure Act it is sufficient to
allege the embezzlement to be of money, without specifying
any particular coin or valuable security, except where the
offence relates to a chattel, which must be described as in
an indictment for larceny. In case the indictment alleges
the embezzlement of money, such allegation, so far as
regards the description of the property, is sustained by
proof that the offender embezzled any amount, although
the particular species of coin or valuable security of which
such amount was composed shall not be proved ; or by
proof that he embezzled any piece of coin or any valuable
security, or any portion of the value thereof, although such
piece of coin or valuable security may have been delivered
to him in order that some part of the value thereof should
be returned to the party delivering the same, or to some
other person, and such part shall have been returned accord-
ingly ; but an indictment for embezzling money is not
proved by showing merely that the prisoner embezzled a
cheque without evidence that the cheque had been con-
verted into money. — R. v. Keena, 11 Cox, 123. The
indictment must allege the goods embezzled to be the pro-
perty of the master, R. v. McGregor, 3 B. & P. 106,
R. & R. 23 ; R. v. Beacall, 1 Moo. C. C. 15 ; and it has been
said that it must show that the defendant was servant at
the time. — R. v. Somerton, 7 B. & C. 463. See, however,
LARCENY. 389
R. v. Lovell, 2 M. & Rob. 236. It is usual and prudent to
state that the defendant feloniously did embezzle, but it
is not absolutely necessary, if the conclusion state that he
feloniously stole. — R. v. Crighton, R. & R. 62. It is not
necessary to state from whom the money was received. —
R. v. Beacall, 1 C. & P. 454 ; and note in R. v. Crighton,
R. <t R. 62. But the judge may order a particular of the
charge to be furnished to the prisoner. — R. v. Bootyman.
5 C. & P. 300; R. v. Hodgson, 3 C. & P. 422— Archbold.
A female servant is within the meaning of the Act. — R.
v. Smith, R. <t <£. 267 ; so is an apprentice though under
age, R. v. Mdlish, R. <£- R. 80 ; and any clerk or servant,
whether to person in trade or other wise. — R. v. Squire, R.
6 R. 349 ; R. v. Townsend, 1 Den. 167 ; R. v. Adey, 1
Den. 571. A clerk of a savings bank, though elected by
the managers, was held to be properly described as clerk
to the trustees. — R. v. Jenson, 1 Moo. C. C. 434. The mode
by which the defendant is remunerated for his services is
immaterial, and now, if he has a share or is a co-partner
in the society whose monies or chattels he embezzled, he
may be indicted as if he was not such shareholder or co-
partner; sect. 58, post. — R. v. Hartley, R. <£ R. 139; R.
v. Macdtmald, L. & C. $5 ; R. v. Balls, 12 Cox, 96. So,
where the defendant was employed as a traveller to take
orders and collect money, was paid by a percentage upon
the orders he got, paid his own expenses, did not live with
the prosecutors, and was employed as a traveller by other
persons also, he was holden to be a clerk of the prosecutors
within the meaning of the Act. — R. v. Can', R. & R. 198 >'
R. v. Hoggins, R. & R. 145; R. v. Tite, L. & C. 29 ; 8
Cox, 458. Where the prisoner was employed by the pros-
ecutors as their agent for the sale of coals on commission,
and to collect monies in connection with his orders, but he
390 LARCENY.
was at liberty to dispose of his time as he thought best,
and to get or abstain from getting orders as he might
choose, he was held not to be a clerk or servant within the
statute. — R. v. Boiuers, 10 Cox, 254. In delivering judg-
ment in that case, Erie, C. J., observed: "The cases have
established that a clerk or servant must be under the orders
of his master, or employed to receive the monies of his
employer, to be within the statute ; but if a man be
intrusted to get orders and to receive money, getting the
orders where and when he chooses, and getting the money
where and when he chooses, he is not a clerk or servant
within the statute." See R. v. Walker, Dears. & R. 600 ;
R. v. May, L. & C. 13 ; R. v. Hall, 13 Cox, 49. A person
whose duty it is to obtain orders where and when he likes,
and forward them to his principal for execution, and then
has three months within which to collect the money for
the goods sent, is not a clerk or servant; if such a person,
at the request of his principal, collects a sum of money
from a customer, with the obtaining of whose order he has
had nothing to do, he is a mere volunteer, and is not liable to
be prosecuted for embezzlement, if he does not pay over or
account for the money so received. — R. v. Mayle, 11 Cox,
150. The prisoner was employed by a coal merchant under
an agreement whereby " he was to receive one shilling per
ton procuration fee, payable out of the first payment, four
per cent for collecting, and three pence on the last
payment ; collections to be paid on Friday evening before
5 P. m., or Saturday before 2 p.m." He received no salary,
was not obliged to be at the office except on the Friday or
Saturday to account for what he had received ; he was at
liberty to go where he pleased for orders : Held, that the
prisoner was not a clerk or servant within the statute
relating to embezzlement.— R. v. Marshall, 11 Cox, 490.
LARCENY. 391
Prisoner was engaged by U. at weekly wages to manage a
shop ; U. then assigned all his estate and effects to R., and
a notice was served on prisoner to act as the agent of R. in
the management of the shop. For fourteen days afterwards
E. received from U. the shop moneys. Then the shop
money was taken by U. as before. Prisoner received his
weekly wages from U. during the whole time. Some time
after a composition deed was executed by R. and U. and
LVs creditors, by which R. re-conveyed the estate and
effects to U.; but this deed was not registered until after
the embezzlement charged against the prisoner ; Held, that
prisoner was the servant of U. at the time of the embezzle-
ment.— R. v. Dixon, 11 Cox, 178. The prisoner agreed
with the prosecutor, a manufacturer of earthenware, to act
as his traveller, and " diligently employ himself, in going
from town to town, in England, Ireland and Scotland, and
soliciting orders for the printed and decorated earthenware
manufactured by the prosecutor, and that he would not,
without the consent in writing of the prosecutor, take or
execute any order for vending or disposing of any goods,
of the nature or kind aforesaid for or on account of himself
or any other person." It was further agreed that the
prisoner should be paid by commission, and should render
weekly accounts. The prosecutor subsequently gave the
prisoner written permission to take orders for two other
manufacturers. The prisoner being indicted for embezzle-
ment : Held, that he was a clerk or servant of the pros-
ecutor within the meaning of the statute. — R. v. Turner,
11 Cox, 551. Lush, J., in this case, said: "If a person
says to another carrying on an independent trade, 'if you
get any orders for me I will pay you a commission,' and
that person receives money and applies it to his own use,
he is not guilty of embezzlement, for he is not a clerk or
392 LARCENY.
servant ; but if a man says : ' I employ you and will pay
you, not by salary, but by commission ' the person employed
is a servant. In the first case, the person employing has
no control over the person employed ; in the second case,
the person employed is subject to the control of the
employer. And on this, this case was distinguished from
R. v. Bowers, and R. v. Marshall, supra. So, in R. v.
Bailey, 12 Cox, 56, the prisoner was employed as traveller
to solicit orders, and collect the moneys due on the execu-
tion of the orders, and to pay over moneys on the evening
of the day when collected, or the day following. The pris-
soner had no salary but was paid by commission. The
prisoner might get orders where and when he pleased
within his district. He was to be exclusively in the employ
of the prosecutors, and to give the whole of his time, the
whole of every day, to their service. Held, that the prisoner
was a clerk and servant within the statute." See R. v.
Foulkes, 13 Cox, 63.
A person engaged to solicit orders and paid by com-
mission on the sums received, which sums he was forth-
with to hand over to the prosecutors, was at liberty to
apply for orders, when he thought most convenient, and
was not to employ himself for any other person : Held, not
a clerk or servant within the statute ; the prisoner was uot
under the control and bound to obey the orders of the
prosecutors. — R. v. Negus, 12 Cox, 492; R. v. Hall, 13
Cox, 49; R. v. Coley, 16 Cox, 227.
Prisoner was employed by 0. to navigate a barge, and
was entitled to half the earnings after deducting the ex-
penses. His whole time was to be at O.'s service, and his
duty was to account to 0. on his return after every voyage.
In October, prisoner was sent with a barge load of
bricks to London, and was there forbidden by 0. to take
LARCENY. 393
manure for P. Notwithstanding this, prisoner took the
manure, and received .£4 for the freight, which he ap-
propriated to his own use. It was not proved that he
carried the manure, or received the freight for his master,
and the person who paid the <£4 did not know for whom
it was paid : Held, that the prisoner could not be convicted
of embezzlement, as the money was not received by him
in the name, or for, or on account of his master. — R. v.
OuUum, 12 Cox, 469. See R. v. Gale, 13 Cox, 340.
It is not necessary that the employment should be per-
manent; if it be only occasional, it will be sufficient.
Where the prosecutor having agreed to let the defendant
cany out parcels when he had nothing else to do, for
which the prosecutor was to pay him what he pleased, gave
him an order to receive two pounds, which he received and
embezzled, he was holden to be a servant within the
meaning of the Act. — R. v. Spencer, R. & R. 299 ; R. v.
Smith, R. S R. 516. And in R. v. Hughes, 1 Moo. C. C. 370,
where a drover, who was employed to drive two cows to a
purchaser, and receive the purchase money, embezzled it,
he was holden to be a servant within the meaning of the
Act, by the judges; but the judge presiding the trial
seemed to be of a contrary opinion, and R. v. JSettleton, 1
Moo. C. C. 259 ; R. v. Burton, IMoo. C.C. 237, appear to be
adverse to R.v. Hughes. See R. v. Tongue, Bell 289 ; R, v.
Hall, 1 Moo. C.C. 374 ; R. v. Miller, 2 Moo. C.C. 249 ; R. v.
Proud, L. & C, 97; 9 Cox, 22. The treasurer of a friendly
society, into whose hands the monies received on behalf of
the society were to be paid, and who was to pay no money
except by an order signed by the secretary and counter-
signed by the chairman or a trustee, and who by the statute
was bound to render an account to the trustees, and to pay
over the balance on such accounting when required, but
394 LAECENY.
was not paid for his services, is not a clerk or servant, and
cannot be indicted for embezzlement of such balance. — R.
v. Tyrie, 11 Cox, 24 i. And before the statute making it
larceny or embezzlement for a partner to steal or embezzle
any of the co-partnership property, the secretary of a
friendly society, and himself a member of it, could not be
convicted on an indictment for embezzling the society's
monies, laying the property in, and describing him as the
servant of A. B. (another member of the society) and
others, because the " others " would have comprised himself,
and so the indictment would in fact have charged him with
embezzling his own money, as his own servant. — R. v.
Diproae, 11 Cox, 185 ; R. v. Taffs, 4 Cox, 169 ; R. v. Bren.
L. & C. 346. But a stealing or embezzlement by a partner
is now provided for by sec. 58, 'post.
The trustees of a benefit building society borrowed
mone}' for the purpose of their society on their individual
responsibility, the money, on one occasion, was received
by their secretary and embezzled by him : Held, that the
secretary might be charged in the indictment for embez-
zlement of the property of W. and others, W. being one of
the trustees, and a member of the society. — R. v. Bedford,
11 Cox, 367. A person cannot be convicted of embezzle-
ment as clerk or servant to a society, which, in consequence
of administering an unlawful oath to its members, is unlaw-
ful, and prohibited by law. — R. v. Hunt, 8 C. & P. 642.
But an unregistered friendly society or trades union may
prosecute its servants for embezzlement of its property,
though some of its rules may be void as being in restraint
of trade, and contrary to public policy. Kules in a trades
union or society imposing fines upon members for working
beyond certain hours, or for applying for work at a firm
where there is no vacancy, or for taking a person into a
LARCENY. 395
shop to learn weaving where no vacant loom exists, though
void as being in restraint of trade, do not render the society
criminally responsible. — R. v. Stainer, 11 Cox, 483. If
the clerk of several partners embezzle the private money
of one of them, it is an embezzlement within the Act, for
he is a servant of each. So where a traveller is employed
by several persons and paid wages, to receive money, he
is the individual servant of each. — R. v. Can', R. & R. 198 ;
R. v. Batty, 2 Moo. C. C. 257 ; R. v. Leach, Archbold, 450.
So a coachman, employed by one proprietor of a coach to
drive a certain part of the journey, and to receive money
and hand it over to him, may be charged with embezzling
the money of that proprietor, though the money, when
received, would belong to him and his partners. — R. v.
White, 2 Moo. 91.
In R. v. Glover, L. <fc C. 466, it was held that a county
court bailiff, who has fraudulently misappropriated the
proceeds of levies, made under county court process, can-
not be indicted for embezzling the monies of the high-bailiff,
his master ; these monies are not the property of the high
bailiff. A distraining broker employed exclusively by the
prosecutor, and paid by a weekly salary and by a commis-
sion, is a servant within the statute. —R. v. Flanagan, 10
Cox, 561.
Where the prisoner was charged with embezzlement,
but his employer who made the engagement with him was
not called to prove the terms thereof, but only his man-
aging clerk, who knew them through repute alone, having
been informed of them by his employer, it was held that
there was no evidence to go to the jury that the prisoner
was servant to the prosecutor. — R. v. Taylor, 10 Cox, 544.
Money received by the defendant from his master him-
self, for the purpose of paying it to a third person, is not
396 LAECENY.
within the embezzlement section; it is larceny. — R. v.
Peck, 2 Russ. 449 ; R. v. Smith, R. & R. 267 ; R. v. Haw-
kins, 1 Den. 584; R. v. Goodenough, Dears. 210. The
principle in these and the following cases, is that in law,
the possession by the servant is possession by the master,
and that the master who places money in his servant's
hands for paying bills, etc., does not loose the possession
of his money ; so, that the servant, in fraudulently mis-
appropriating this money, takes it wrongfully, in law,
in his master's possession, indie, commits larceny, not em-
bezzlement. And the principle is the same, when money
is constructively in the possession of the master by the
hands of any other clerk or servant. — R. v. Murray, 1
Moo. C. C. 276; R. v. Watts, 2 Den. 15; R. v. Reed.
Dears. 168-257.
So, where the defendant's duty was to place every night
in an iron safe, provided by his employer for that purpose, in
an office where he conducted the business of his employer,
though in his own house, the monies received by him on
his employer's account and not used during the day, it was
held that by placing it there, he determined his own ex-
clusive possession of the money, and that, by afterwards
taking some of it out of the safe, animo furandi, he was
guilty of larceny. — R. v. Wright, Dears. & B. 431. The
fraudulent appropriation of money, which has never been
in the master's own possession, and which the defendant
has received from a fellow-servant to give to his master, is
embezzlement. — R. v. Masters, 1 Den. 332. Greaves, note
d, 2 Russ. 450, thinks this is a wrong decision. Where
the master gave a stranger some marked money, for the
purpose of purchasing goods from the master's shopman,
in order to try the shopman's fidelity ; the stranger bought
the goods, and the shopman embezzled the money, the
LARCENY. 397
judges held this to be a case within the Act. — R. v. Headge,
R. <£• 22. 160 ; R. v. Gill, Dears. 289. Where the defendant's
duty was to sell his master's goods, entering the sales in
a book, and settling account with his master weekly, and
upon such a sale the defendant fraudulenty omitted to make
an entry of it in the book, and appropriated the money
which he received from the buyer, this was held to be
embezzlement and not larceny. — R. v. Betts, Bell, G. C. 90.
A defendant, whose business it was to receive orders, to take
the materials from his master's shop, work them up, deliver
the goods, receive the price fur them, and pay it over to
his master, who at the end of the week paid the defendant
a proportion of the price for his work, received an order
for certain goods, took his master's materials, worked them
up on his premises, delivered them and received the price,
but concealed the transaction, and embezzled the money;
upon a conviction for embezzlement, it was doubted whether
this was not a larceny of the materials, rather than a case
within the statute : the judges held the conviction right.
— R. v. Hoggins, R. & R. 145.
But where it appeared that the defendant was employed
as a town traveller and collector, to receive orders from
customers, and enter them in the books and receive the
money for the goods supplied thereon, but had no autho-
rity to take or direct the delivery of goods from his master's
shop, and a customer having ordered two articles of the
defendant, he entered one of them only in the order book,
for which an invoice was made out by the prosecutor for
the customer ; but the defendant entered the price of the
other at the bottom of the invoice, and having caused both
to be delivered to the customer received the price of both,
and accounted to the prosecutor only for the former; this
was held not to be embezzlement but larceny. — R. v. WiU
398 LARCENY.
son, 9 ft & P. 27. The prisoner, as foreman, by fraudu-
lently misrepresenting that twenty-one pounds, eighteen
shillings was due for wages to the men under him, obtain-
ed that sum from his master's cashier. On the pay-sheet
made out by the prisoner, one pound ten shillings and
four pence was set down as due to W., whereas only one
pound, eight shillings was due, and that amount only was
paid by prisoner to W. out of the twenty -one pounds,
eighteen shillings ; the excess, two shillings and four pence,
was appropriated, out of the twenty-one pounds eighteen
shillings, to the prisoner's own use, he intending so to
appropriate it at the time he received the twenty-one
pounds eighteen shillings : Held, that the prisoner was
guilty of larceny of his master's two shillings and four
pence. — R. v. Cooke, 12 Cox, 10. See R. v. Beaumont,
Dears. 270 ; R. v. Thorp, Dears. SB. 262 ; R. v. Harris
Dears. 344; R. v. Sullens, 1 Moo. C. C. 129. A correct
entry of money received in one book out of several is not
answer to a charge of embezzlement, where the prisoner
has actually appropriated the money. — R. v. Lister, Dears.
& B. 118.
The usual presumptive evidence of embezzlement is that
the defendant never accounted with his master for the
money, etc., received by him, or that he denied his having
received it. But merely accounting for the money is not
sufficient, if there is a misappropriation of it. — R. v. Lister,
supra. Greaves says, note n, 2 Russ. 455 : "A fallacy
is perpetually put forward in cases of embezzlement; the
offence consists in the conversion of the thing received ;
no entry or statement is anything more than evidence
bearing on the character of the disposal of the thing ; and,
yet entries are constantly treated as the offence itself. If a
man made every entry in due course, it would only, at
LARCENY 399
most, amount to evidence that he did not, when he made
them, intend to convert the money; and yet he might have
converted it before, or might do so afterwards. If he were
proved to have converted it before he made the entries,
the offence would be complete, and no entry afterwards
made could alter it. So, on the other hand, if he made no
entries or false entries but actually paid the money to his
master, he would be innocent." See B. v. Guelder, Bell,
284, and Brett's, J., remarks in B. v. Walstertholme, 11 Cox.
313 ; B. v. Jackson, 1 C. <fc K. 384. The fact of not pay-
ing over monies received by a servant is proof of embez-
zlement, even if no precise time can be fixed at which it was
his duty to pay them over, if his not accounting for
them is found to have been done fraudulently. — B. v.
Welch, 1 Den. 199 ; B. v. Worthy, 2 Den. 333.
In B. v. Grove, 1 Moo. C. C. 447, a majority of the
judges (eight against seven) are reported to have held that
an indictment for embezzlement might be supported by
proof of a general deficiency of monies that ought to
be forthcoming, without showing any particular sum
received and not accounted for. See, also, B. v. Lambert,
2 Cox, 309 ; B. v. Moah, Dears. 626. But in B. v.
Jones, 8 C. & P. 288, where, upon an indictment for
embezzlement, it was opened that proof of a general
deficiency in the prisoner's accounts would be given, but
none of the appropriation of a specific sum, Anderson, B.,
said : " Whatever difference of opinion there might be in
B. v. Grove, (ubi supra) that proceeded more upon the
particular facts of that case than upon the law; it is
not sufficient to prove at the trial a general deficiency
in account ; some specific sum must be proved to be
embezzled, in like manner as in larceny some particular
article must be proved to have been stolen. See, also,
400 LARCENY.
R. v. Chapman, 1 C. & K. 119, 2 Russ. 460, and R. v.
Wolstenholme, 11 Cox, 313.
A conductor of a tramway car was charged with
embezzling three shillings. It was proved that on a
certain journey- there were fifteen threepenny fares, and
twenty-five twopenny fares, and the conductor was seen
to give tickets to each fare and to receive money from
each, but what sum did not appear. He made out a
way bill for the journey debiting himself with only nine
threepenny fares and sixteen twopenny fares. The
mode of accounting was to deliver the way bills for each
journey to a clerk, and to hand in all the money received
during each day on the following morning. The prisoner's
money should have been £3 Is. 9d., according to his way
bills for the day, but he paid in only £3 0s. 8d. Held,
that there was sufficient evidence of the receipt of seven
shillings and eleven pence, the total amount of fares of
the particular journey, and of the embezzlement of three
shillings, part thereof. — R. v. King, 12 Cox, 73.
Where the indictment contains only one count, charging
the receipt of a gross sum on a particular day, and it
appears in evidence that the money was received in
different sums on different days, the prosecutor will be put
to his election, and must confine himself to one sum and
one day. — R. v. Williams, 6 C. & P. 626.
The prisoner, not having been in the employment of the
prosecutor, was sent by him to one Milner with a horse as
to which Milner and the prosecutor, who owned the horse,
had had some negotiations, with an order to Milner to give
the bearer a cheque if the horse suited. On account of a
difference as to the price the horse was not taken and the
prisoner brought him back. Afterwards the prisoner,
without any authority from the owner, took the horse to
LARCENY. 401
Milner and sold it as his own property, or professing to
have a right to dispose of it, and received the money,
giving a receipt in his own name.
Held, that a conviction for embezzlement could not be
sustained as the prisoner, when he received the money,
did not receive it as a servant or clerk but sold the horse
as his own and received the money to his own use. — The
Queen v. Topple, 3 R. & C. (iV, S.) 566.
Upon the trial for any offence, mentioned in these
sections, the jury may convict of an attempt to commit
the same, under sec. 183 of the Procedure Act, if the
evidence warrants it.
On a trial for embezzlement, held, that evidence of
a general deficiency having been given, the conviction
was right, though it was not proved that a particular sum
coming from a particular person on a particular occasion,
was embezzled by the prisoner. — R. v. Glass, 1 L. X. 41.
But a general deficiency alone is not sufficient. — R. v.
Glass, Ramsay' 8 App. Cos. 186-195.
53. Every one who, being employed in the public service of Her
Majesty, or of the Lieutenant Governor or government of any Province
of Canada, or of any municipality, steals any chattel, money or
valuable security belonging to or in the possession or power of Her
Majesty, or of such Lieutenant Governor, govern mentor municipality,
or intrusted to or received or taken into possession by him by virtue
of his employment, is guilty of felony, and liable to fourteen years'
imprisonment— ,32-33 V., c. 21, s. 71. 24-25 V., c. 96, *. 69, Imp.
54. Every one who, being employed in the public service of Her
Majesty, or of the Lieutenant Governor, or government of any Province
in Canada, or of any municipality, and intrusted, by virtue of such
employment, with the receipt, custody, management or control of
any chattel, money or valuable security, embezzles any chattel,
money or valuable security, intrusted to or taken into possession
by him by virtue of his employment, or any part thereof, or in
any manner fraudulently applies or disposes of the same, or any
part thereof, to his own use or benefit, or for any purpose whatsoever
BB
402 LARCENY.
except for the public service, or for the service of such Lieutenant
Governor, government or municipality, feloniously steals the same
from Her Majesty, or from such municipality, and is liable to fourteen
years' imprisonment.— 32-33 V., c 21, s. 72, pari. 24-25 V.,c. 96, s.
70, Imp.
55. Every one who, being employed in the public service of Her
Majesty, or of the Lieutenant Governor, or government of any Province
of Canada, or of any municipality, and intrusted by virtue of such
employment with the keeping, receipt, custody, management or
control of any chattel, money, valuable security, book, paper, account
or document, refuses or fails to deliver up tbe same to any one
authorized to demand it, is guilty of a fraudulent embezzlement
thereof, and liable to fourteen years' imprisonment ;
2. Nothing herein shall affect any remedy of Her Majesty, of the
municipality, or of any person against the offender or his sureties, or
any other person, nor shall the conviction of such offender be receivable
in evidence in any suitor action against him. — 41 V.,c 7, s. 70, part.
C. S. 0. c. 16, s. ±0,part. 29-30 V. (Can.), c. 51, s. 157, part.
See sec. 16 of Procedure Act, post, for venue in cases
under the three preceding sections.
Where the registrar and treasurer of the late Trinity
House was charged with embezzling a portion of the fund
known as " The Decayed Pilots Fund." Held, that this
was an embezzlement of moneys the property of " Our
Lady the Queen." — R. v. David, 17 L. C. J. 310.
(under sec. 54 of the Larceny Act.) See M. v. Graham,
13 Cox, 57.
These clauses have the effect of extending sections 51
and 52, as to larceny and embezzlement by clerks or
servants, to public and municipal officers, and the remarks
under the said sections, ante, may be applied here.
Indictment under sect. 53. — on at
being then employed in the public service of Her
Majesty, to wit, being then and there one
belonging to Her Majesty, feloniously did steal, take and
carry away, against the form — ZBurn, 319.
LARCENY. 403
This form has not the word " feloniously ** in 3 Burn,
loc. cit.
Indictment under sec. 54. — on at
being employed in the public service of Her
Majesty, and being entrusted, by virtue of such employ-
ment, with the receipt, custody, management and control
of a certain valuable security, to wit did then and
there, whilst he was so employed as aforesaid, receive and
take into his possession the said valuable security, and
the said valuable security then fraudulently and feloni-
ously did embezzle ; and so the jurors aforesaid, upon their
oath aforesaid do say, that, (defendant) in manner
and form aforesaid, the said valuable security, the property
of Her Majesty, from Her Majesty, feloniously did steal,
take and carry away, against the form 3 Burn,
319. A second count laying ivhat particular office the
defendant field may be added.
Evidence of acting in the capacity of an officer employed
by the crown is sufficient to support an indictment ; and
the appointment need not be regularly proved. — R. v.
Tovmsend, C.&M.17%\R. v. Borrett, 6 C. & P. 124.
Proof of a general deficiency in account would probably
not be sufficient; the embezzlement of a specific sum
would have to be proved. See cases under sec. 52.
Sec. 126 of the Procedure Act contains an enactment
as to the form of indictment under these three clauses.
56. Every one who steals, or unlawfully or maliciously, either by
violence or stealth, takes from any person having the lawful custody
thereof, or from its lawful place of deposit for the time being, or aids,
counsels or assists in 80 stealing or taking any writ of election, or any
return to a writ of election, or any indenture, poll-book, voters' list,
certificate, affidavit or report, or any document or paper made, pre-
pared or drawn out according to or for the requirements of any law
in regard to provincial, municipal or civic elections, is guilty of a
404 LARCENY.
felony, and liable to a fine, in the discretion of the court, or to seven
years' imprisonment, or to both fine and imprisonment. — 29-30 V.
{Can.), c 51, s. 188, part. R. S. B. C-, c. 157, ss. 99 and 100, parts.
This clause does not apply to writs of election or
documents relating to elections for the Dominion Parlia-
ment.
STEALING BY TENANTS OR LODGERS.
57. Every one who steals any chattel or fixture let to be used by
him, or her, in or with any house or lodging, whether the contract
has been entered into by him or her, or by her husband, or by any
person on behalf of him or her or her husband, is guilty of felony,
and liable to imprisonment for any term less than two years, and if
the value of such chattel or fixture exceeds the sum of twenty-five
dollars, is liable to seven years' imprisonment. — 32-33 V-, c. 21, s. 75,
part. 24-25 V., c 96, s. 74, Imp.
If the indictment be for stealing a chattel, it may be,
by sec, 127 of the Procedure Act, in the common form for
larceny, and in case of stealing a fixture, the indictment
may be in the same form as if the offender were not a
tenant or lodger, and the property may be laid either in
the owner or person letting to hire. If the indictment be
for stealing a fixture, use form under sec. 17, ante, and
describe the dwelling-house as that of the landlord, as in
burglary. — 3 Burn. 319.
There may be a conviction of an attempt to commit
any offence mentioned in this section, upon a trial for
that offence. Sec. 183 of the Procedure Act.
By common law, a lodger had a special property in the
goods which were let with his lodgings ; during the lease
he, and not the landlord, had the possession ; therefore the
landlord could not maintain trespass for taking the goods ;
in conseq uence, the taking by the lodger was not felonious.
— Meere's Case, 2 Russ. 519 ; R. v. Belstead, R. & R. 411.
Hence, the statutory enactments on the subject.
LARCENY. 405
STEALING BY PARTNERS.
58. Every one who, being a member of any co-partnership owning
anv money or other property, or being one of two or more beneficial
owners of any money or other property, steals, embezzles or unlaw-
fully converts the same or any part thereof to his own use, or that of
any person other than the owner, is liable to be dealt with, tried,
convicted and punished as if he had not been or were not a member
of such co-partnership, or one of such beneficial owners. — 32-33 V.,
c. 21, *• 38. 31-32 V., c 116, s. 1 Imp.
The Imperial clause reads as follows : " If any person
being a member of any co-partnership, or being one of two
or more beneficial owners of any money, goods or effects,
bills, notes, securities, or other property, shall steal or
embezzle any such money, goods or effects, bills, notes,
securities or other property, of or belonging to any such
co-partnership, or to such joint beneficial owners, every
such person shall be liable to be dealt with, tried, con-
victed and punished for the same as if such person had not
been or was not a member of such co-partnership, or one
of such beneficial owners."
A partner stole goods belonging to the firm, and ren-
dered himself liable to be dealt with as a felon under the
31-32 V., c. 116, sect. 1 (the present clause'), and sold the
same to the prisoner who knew of their having been stolen :
Held, that the prisoner could not be convicted on an indict-
ment for feloniously receiving, but might have been con-
victed as an accessory after the fact on an indictment
properly framed. — R. v. Smith, 11 Cox, 511.
An indictment framed upon the 31-32 V., c. 116, sect.
1, alleged that B. was a membar of a co-partnership con-
sisting of B. and L., and that B., then being a member of
the same, eleven bags of cotton waste, the property of the
said co-partnership, feloniously did steal, take and carry
away : Held, that the indictment was not bad for introduc-
406 LARCENY.
ing the word "feloniously." — E. v. Butterworth, 12 Cox,
132. In this case, Cottingham, for the prisoner, said : " The
indictment is bad because it does not follow the words of
the statute. That enactment creates a new offence, one
which did not exist at common law ; it does not say that
the offence shall be a felony, and the indictment is bad for
using the word "feloniously." There are offences of steal-
ing, which are not felonious, such as dog stealing." Lush,
J., said : " If the offence created by this section is not a
felony, what is it ? " And the court, without calling upon
the counsel for the prosecution, affirmed the conviction,
holding the objection not arguable.
Indictment. — The Jurors for Our Lady the Queen, upon
their oath present, that on at Thomas But-
terworth, of was a member of a certain co-partner-
ship, to wit, a certain co-partnership carrying on the busi-
ness of and trading as waste dealer, and which said
co-partnership was constituted and consisted of the said
Thomas Butterworth and of John Joseph Lee, trading as
aforesaid ; and, thereupon, the said Thomas Butterworth,
at aforesaid, during the continuance of the said
co-partnership, and then being a member of the same as
aforesaid, to wit, on the day and year aforesaid, eleven
bags of cotton waste of the property of the said co-partner-
ship feloniously did steal, take and carry away, against the
form of the statute in such case made and provided, and
against the peace of Our said Lady the Queen, her crown
and dignity. — R. v. Butterworth, supra.
SeejR. v. Ball, 12 Cox, 96, for an indictment against a
partner for embezzlement of partnership property; also, R.
w.Blackburn, 11 Cox, 157.
A partner, at common law, may be guilty of larceny of
the partnership's property; so may a man be guilty of lar-
LARCENY. 407
ceny of his own goods ; R. v. Webster, L. <£ C. 77 ; R. v.
Burgess, L. d; C. 299 ; R. v. Moody. L. <fc C. 173 ; of course,
that is when the property is stolen from another person in
whose custody it is, and who is responsible for it. See, also,
Bovill's, C. J., opinion in R. v. Diprose, 11 Cox, 185.
Upon an indictment for larceny, under this section, the
prisoner may be found guilty of embezzlement. — R. v.
Rudge, 13 Cox, 17.
FRAUDS BY AGENTS, BANKERS OR FACTORS.
59. Every one who, being a cashier, assistant cashier, manager,
officer, clerk or servant of any bank, or savings bank, secretes,
embezzles or absconds with any bond, obligation, bill obligatory or
of credit, or other bill or note, or any security for money, or any
money or effects intrusted to him as such cashier, assistant cashier,
manager, officer, clerk or servant, whether the same belongs to the
bank or belongs to any person, body corporate, society or institu-
tion, and is lodged with such bank, is guilty of felony, and liable to
imprisonment for life or for any term not less than two years. — 34
V., c. 5, s. 60, and c. 7, s. 32. 24-25 V., c. 96, s. 73, Imp.
60. Every one who, —
(a.) Having been intrusted, either solely or jointly with any other
person, as a banker, merchant, broker, attorney or other agent, with
any money or security for the payment of mouey, with any direction
in writing to apply, pay or deliver such money or security, or any
part thereof respectively, or the proceeds or any part of the proceeds
of such security, for any purpase, or to any person specified in such
direction, in violation of good faith and contrary to the terms of such
direction, in anywise converts to his own use or benefit, or the use
or benefit of any person other than the person by whom he has been
so intrusted, such money, security or proceeds, or any part thereof
respectively, or —
(6.) Having been intrusted, either solely or jointly with any other
person, as a banker, merchant, broker, attorney or other agent, with
any chattel or valuable security, or any power of attorney for the
sale or transfer of any share or interest in any public stock or fund,
whether of the United Kingdom or any part thereof, or of Canada, or
of any Province thereof, or of any British colony or possession, or of
any foreign state, or in any stock or fund of any body corporate,
408 LAECENY.
company or society, for safe custody or for any special purpose,
without any authority to sell, negotiate, transfer or pledge, in viola-
tion of good faith, and contrary to the object or purpose for which
such chattel, security or power of attorney has been intrusted to him,
sells, negotiates, transfers, pledges, or in any manner converts to his
own use or benefit, or the use or benefit of any person other than the
person by whom he has been so intrusted, such chattel or security,
or the proceeds of the same, or any part thereof, or the share or interest
in the stock or fund to which such power of attorney relates, or any
part thereof, —
Is guilty of a misdemeanor, and liable to seven years' imprison-
ment.
2. Nothing in this section contained relating to agents shall affect
any trustee in or under any instrument whatsoever, or any mortgagee
of any property, real or personal, in respect to any act done by such
trustee or mortgagee in relation to the property comprised in or
affected by any such trustor mortgage ; nor shall restrain any banker,
merchant, broker, attorney or other agent from receiving any money
due or to become actually due and payable upon or by virtue of any
valuable security, according to the tenor and effect thereof, in such
manner as he might have done if this Act had not been passed ; nor
from selling, transferring or otherwise disposing of any securities or
effects in his possession, upon which he has any lien, claim or demand,
entitling him by law so to do, unless such sale, transfer, or other
disposal extends to a greater number or part of such securities or
effects than are requisite for satisfying such lien, claim or demand. —
32-33 V., c. 21, *. 76. 24-25 V., c 96, s. 75, Imp.
Greaves says : " The former enactments did not extend
to a direction to apply any security for the payment of
money ; the present clause is extended to that case, and the
words "pay or deliver" " to any person" are introduced to
include cases where the direction is to pay or deliver a bill
of exchange or other security to a particular person. The
words " or the use or benefit of any person other than the
person" are introduced to include cases where the banker,
etc., converts the property not to his own use, but to that
of some person other than the person employing him. If it
should be suggested that these words are too large, as they
LARCENY. 409
would include a payment to the use of A. by the direction
of the party intrusting the money to the banker, the an-
swer is, that to bring a case within this clause, three things
must concur ; the property must be disposed of, first, in
violation of good faith ; secondly, contrary to the term of
the direction ; thirdly, to the use of the banker or of some
one other than the party intrusting the banker, and conse-
quently no case where the banker obeys the direction of
the party intrusting him can come within the clause.
By sec. 6 of the Procedure Act, no court of general or
quarter sessions has power to try any offence under sects.
60 to 76 of the Larceny Act. And by sec. 197, the defen-
dant, under said sections, is not to be acquitted, if larceny
is proved.
Sub sec. b of sec. 60 applies only to persons whose
occupation is similar to those specially enumerated in the
section, and does not include any ordinary agent who may
from time to time be entrusted with valuable securities.
R. v. Portugal, 16 Q. B. D. 487.
61. Every one who, being a banker, merchant, broker, attorney
or agent, and being intrusted, either solely or jointly with any other
person, with the property of any other person for safe custody, with
intent to defraud, sells, negotiates, transfers, pledges or in any other
manner converts or appropriates the same, or part thereof, to or for
his own use or benefit, or the use or benefit of any person other than
the person by whom he was so intrusted, is guilty of a misdemeanor,
and liable to seven years' imprisonment. — 32-33 V., c. 21, *. 77. 24-25
V., c 96, *. 76, Imp.
62. Every one who, being intruHted, either solely or jointly with
any other person, with any power of attorney, for the sale or transfer
of any property, fraudulently 6ells or transfers, or otherwise converts
the same or any part thereof to his own use or benefit, or the use or
benefit of any person other than the person by whom he was so
intrusted, is guilty of a misdemeanor, and liable to seven years'
imprisonment— 32-33 V., c. 21, s. 78. 24-25 F„ c. 96, s. 77, Imp.
410 LARCENY.
63. Every one who, being a factor, or agent intrusted, either solely
Or jointly with any other person, for the purpose of sale or otherwise,
with the possession of any goods, or of any document or title to goods,
contrary to or without the authority of his principal in that behalf,
for his own use or benefit, or the use or benefit of any person other
than the person by whom he was so intrusted, and in violation of
good faith, makes any consignment, deposit, transfer or delivery of
any goods or document of title so intrusted to him as in this section
before mentioned, as and by way of a pledge, lien or security for any
money or valuable security borrowed or received by such factor or
agent at or before the time of making such consignment, deposit,
transfer or delivery, or intended to be thereafter borrowed or received,
or contrary to or without such authority, for his own use or benefit,
or the use or benefit of any person other than the person by whom he
was so intrusted, and in violation of good faith, accepts any advance
of any money or valuable security on the faith of any contract or
agreement to consign, deposit, transfer or deliver any such goods or
document of title, is guilty of a misdemeanor, and liable to seven
years' imprisonment;
2. Every one who knowingly and wilfully acts and assists in making
any such consignment, deposit, transfer or delivery, or in accepting
or procuring such advance as aforesaid, is guilty of a misdemeanor,
and liable to the same punishment ;
3. No such factor or agent shall be liable to any prosecution for
consigning, depositing, transferring or delivering any such goods or
documents of title, if the same are not made a security for or subject
to the payment of any greater sum of money than the amount which,
at the time of such consignment, deposit, transfer or delivery, was
justly due and owing to such agent from his principal, together with
the amount of any bill of exchange drawn by or on acccuut of such
principal and accepted by such factor or agent. — 32-33 V., c. 21, s. 79.
24-25 V., c. 96, s. 78, Imp.
64. Any factor or agent intrusted, as aforesaid, and possessed of
any such document of title, whether derived immediately from the
owner of such goods or obtained by reason of such factor or agent
having been intrusted with the possession of the goods, or of any other
document of title thereto, shall be deemed to have been intrusted with
the possession of the goods represented by such document of title ;
and every contract pledging or giving a lien upon such document of
title as aforesaid, shall be deemed to be a pledge of and lien upon the
goods to which the same relates ; and such factor or agent shall be
LARCENY. 411
deemed to be possessed of such goods or document, whether the same
are in his actual custody or held by any other person subject to his
control, or for him, or on his behalf; and whenever any loan or
advance is bond Jide made to any factor or agent intrusted with and
in possession of any such goods or document of title, on the faith of
any contract or agreement in writing to consign, deposit, transfer or
deliver such goods or document of title, and such goods or document
of title is or are actually received by the person making such loan or
advance, without notice that such factor or agent was not authorized
to make such pledge or security, every such loan or advance shall be
deemed to be a loan or advance on the security of such goods or
document of title, within the meaning of the next preceding section,
though such goods or document of title are not actually received by
the person making such loan or advance till a period subsequent
thereto; and any contract or agreement, whether made direct with
puch factor or agent or with any clerk or other person on his behalf,
ehall be deemed a contract or agreement with such factor or agent ;
and any payment made, whether by money or bill of exchange, or
other negotiable security, shall be deemed to be an advance witliin the
meaning of the next preceding section ; and a factor or agent in
possession, as aforesaid, of such goods or document, shall be taken,
for the purpose of the next preceding section, to have been intrusted
therewith by the owner thereof, unless the contrary is shown in
evidence— 32-33 F, c 21, * 80. 24-25 F, c. 96, *. 79, Imp.
6o. Every one who, being a trustee of any property for the use or
benefit, either in whole or in part, of some other person, or for any
public or charitable purpose, with intent to defraud, converts or
appropriates the same, or any part thereof, to or for his own use or
benefit or the use or benefit of any person other than such person as
aforesaid, or for any purpose other than such public or charitable
purpose as aforesaid, or otherwise disposes of or destroys such pro-
perty or any part thereof, is guilty of a misdemeanor, and liable to
seven years' imprisonment ;
2. No proceeding or prosecution for any offence mentioned in this
section shall be commenced without the sanction of the attorney
general or solicitor general for the province in which the same is to
be instituted ;
3. When any civil proceeding has been taken against any person
to whom the provisions of this section apply, no person who has
taken such civil proceeding shall commence any prosecution under
412 LARCENY.
this section without the sanction of the court or judge before whom
euch civil proceeding has been had or is pending — 32-33 V., c. 21, s.
81. 24-25 V., c. 96, s. 80, Imp.
66. Every one who, being a director, member, manager or officer
of any body corporate or company, fraudulently takes or applies, for
his own use or benefit, or for any use or purpose other than the use
or purpose of such body corporate or company, any of the property
of such body corporate or company is guilty of a misdemeanor, and
liable to seven years' imprisonment. — 32-33 V., c. 21, s. 82. 24-25
V., c. 96, s. 81, Imp.
67. Every one who, being a director, member, manager or officer
of any body corporate or company, as such receives or possesses
himself of any of the property of such body corporate or company,
otherwise than in payment of a just debt or demand, and, with intent
to defraud, omits to make or to cause or direct to be made a full and
true entry thereof in the books and accounts of such body corporate
or company, is guilty of a misdemeanor, and liable to seven years'
imprisonment— 32-33 V., c. 21, s. 83. 24-25 V., c 96, s. 82, Imp.
68. Every one who, being a director, manager, officer or member
of any body corporate or company, with intent to defraud, destroys,
alters, mutilates or falsifies any book, paper, writing or valuable
security belonging to the body corporate or company, or makes or
concurs in the making of any false entry, or omits or concurs in
omitting any material particular in any book of account or docu-
ment, is guilty of a misdemeanor, and liable to seven years' impris-
onment.—32-33 V., c. 21, s. 84. 24-25 V., c. 96, s. 83, Imp.
69. Every one who, being a director, manager, officer or member
of any body corporate or company, makes, circulates or publishes, or
concurs in making, circulating or publishing any written statement
or account which he knows to be false in any material particular,
with intent to deceive or defraud any member, shareholder, or creditor
of such body corporate or company, or with intent to induce any
person to become a shareholder or partner therein, or to intrust or
advance any property to such body corporate or company, or to enter
into any security for the benefit thereof, is guilty of a misdemeanor,
and liable to seven years' imprisonment. — 32-33 V., c. 21, s. 85. 24-25
V., C 96, s. 84, Imp.
70. Every one who, being an officer or member of any unincor-
porated body or society, associated together for any lawful purpose,
fraudulently takes or applies to his own use or benefit, or for any use
LARCENY. 413
or purpose other than the use or purpose of such body or society, the
whole or any portion of the funds, moneys or other property of the
Bociety, and continues to withhold such property after due demand
has been made for the restoration and payment of the same by some
one or more of the members or officers duly appointed by and on
behalf of the body or society, is guilty of a misdemeanor, and liable
to three years' imprisonment. — C. S. C, c. 71, *• 8. B. S. B. C, c.
126, s. 9.
Not in the English Act.
71. Nothing in any of the twelve sections next preceding shall
enable or entitle any person to refuse to make a lull and complete
discovery by answer to any bill in equity, or to answer any question
or interrogatory in any civil proceeding in any court, or upon the
hearing of any matter in bankruptcy or insolvency ; and no person
shall be liable to be convicted of any of the misdemeanors in the said
sections mentioned by any evidence whatsoever, in respect of any act
done by him, if, at any time previously to his being charged with such
offence, he has first disclosed such act on oath, in consequence of s
any compulsory process of any court of law or equity, in any action,
suit or proceeding bond jide instituted by any party aggrieved, or if
he has first disclosed the same in any compulsory examination or
deposition before any court, upon the hearing of any matter in bank-
ruptcy or insolvency.— 32-33 V., c. 21, *. 86. 24-25 V., c. 96, *. 85,
Imp.
72. Nothing in the thirteen sections next preceding, nor any
proceed'ng, conviction or judgment had or taken thereon against any
person under any of the said sections shall prevent, lessen or impeach
any remedy at law or in equity, which any person aggrieved by any
offence against any of the said sections would have had if this Act
had not been passed ; but no conviction of any such offender shall be
received in evidence in any action or suit against him ; and nothing
in the said sections contained shall affect or prejudice any agreement
entered into, or security given by any trustee, having for its object the
restoration or payment of any trust property misappropriated. — 32-33
F., c. 21, s. 87. 24-25 V., c 96, s. 86, Imp.
73. Every one who, —
(a.) Being the keeper of any warehouse, or a forwarder, miller,
master of a vessel, wharfinger, keeper of a cove, yard, harbor or other
place for storing timber, deals, staves, boards or lumber, curer or
414 LAKCENY.
packer of pork, or dealer in wool, carrier, factor, agent or other person,
or a clerk or other person in his employ, knowingly and wilfully
gives to any person a writing purporting to be a receipt for or an
acknowledgment of any goods or other property as having been
received into his warehouse, vessel, cove, wharf or other place, or in
any such place about which he is employed, or in any other manner
received by him, or by the person in or about whose business he is
employed, before the goods or other property named in such receipt,
acknowledgment or writing have been actually delivered to or received
by him as aforesaid, with intent to mislead, deceive, injure or defraud
any person whomsoever, although such person is then unknown to
him, or —
(6.) Knowingly and wilfully accepts, transmits or uses any such
false receipt or acknowledgment or writing, —
Is guilty of a misdemeauor, and liable to three years' imprisonment.
—32-33 V., c. 21, s. 88. 34 V., e. 5, s. 64.
Not in the English Act.
74. Every one who,—
(a.) Having, in his name, shipped or delivered to the keeper of any
warehouse, or to any other factor, agent or carrier, to be shipped or
carried, any merchandise, upon which the consignee has advanced
any money or given any valuable security, afterwards with intent to
deceive, defraud or injure such consignee, in violation of good faith,
and without the consent of such consignee, makes any disposition of
such merchandise different from and inconsistent with the agreement
made in that behalf between him and such consignee at the time of
or before such money was so advanced, or such negotiable security
eo given, or —
(6.) Knowingly and wilfully acts and assists in making such
disposition for the purpose of deceiving, defrauding or injuring such
consignee, —
Is guilty of a misdemeanor, and liable to three years' imprison-
ment ;
2. No person shall be subject to prosecution under this section who,
before making such disposition of the merchandise aforesaid, pays or
tenders to the consignee the full amount of any advance made thereon.
—32-33 V., c 21, s. 89.
Not in the English Act.
LABCENT. 415
75. Every one who, —
(a.) Wilfully makes any false statement in any receipt, certificate
or acknowledgment for grain, timber or other goods or property,
which can be used for any of the purposes mentioned in " The Bank
Act" or-
Cft.) Having given, or after any clerk or person in his employ has,
to his knowledge, given, as having been received by him in any mill,
warehouse, vessel, cove or other place, any such receipt, certificate or
acknowledgment, for any such grain, timber or other goods or pro-
perty, or having obtained any such receipt, certificate or acknowledg-
ment, and after having indorsed or assigned it to any bank or person,
afterwards, and without the consent of the holder or indorsee, in
writing, or the production and delivery of the receipt, certificate or
acknowledgment, wilfully alienates or parts with, or does not deliver
to such holder or indorsee of such receipt; certificate or acknowledg-
ment, the grain, timber, goods or other property therein mentioned,
Is guilty of a misdemeanor, and liable to three years' imprisonment
—32-33 V., c. 21, s. %,part. 34 V., c 5, s. 65.
Not in the English Act.
70. If any misdemeanor mentioned in any of the three sections
next preceding is committed by the doing of anything in the name of
any firm, company or co-partnership of persons, the person by whom
such thing is actually done or who connives at the doing thereof, is
guilty of the misdemeanor and not any other person. — 32-33 V., c. 21,
*. 91. 34 V., e. 5, s. 66.
Not in the English Act.
By sec. 197 of the Procedure Act, if upon the trial of
any person for any misdemeanor under sects. 6Q to 76,
both inclusive, of the Larceny Act, it appears that the
offence proved amounts to larceny, he shall not by reason
there of be entitled to be acquitted of the misdemeanor. —
14-15 V., c. 100, s. 12, Imp.
W. deposited title deeds with D. as security for a loan,
and requiring a further loan, the defendant, an attorney,
obtained for W. a sum of money from T. and delivered to
her a mortgage deed as security. There were no direc-
tions in writing to the defendant to apply the money to
416 LARCENY.
any purpose, and he was entrusted with the mortgage deed,
with authority to hand it over to T. on receipt of the
mortgage money, which was to be paid to D. and W., less
costs of preparing the deed. The defendant fraudulently
converted a substantial part of the money to his own use ;
Held, that as there was no direction in writing, the defen-
dant was not gnilty of a misdemeanor under sec. 75 of the
Larceny Act, sec. 60 of our statute; Held, also, that he was
not guilty under sect. 76, sec. 61 of our statute. — R. v.
Cooper, 12 Cox, 600. See R. v. Golde, 2 Russ. 481 ; R.
v. Prince, 1C.&P. 517 ; R. v. White, 4 C. & P. 46 ; R.
v. Qomm, 3 Cox, 64 ; R. v. Fletcher, L. & C. 180.— R. v.
Tatlock, 13 Cox, 328 ; R. v. Brownlow, 14 Cox, 216 ;
R. v. Fullagar, 14 Cox, 370.
A stock and share dealer was in the habit of buying for
S. gratuitously and receiving cheques on account. On the
27th of November, he wrote informing S. that X300
Japanese bonds had been offered to him in one lot, and
that he had secured them for her, and that he had no doubt
of her ratifying what he had done, and enclosing her a sold
note for £336, signed in his own name. S. wrote in reply
" that she had received the contract note for Japan shares
and had inclosed a cheque for £336 in payment, and that
she was perfectly satisfied that he had purchased the shares
for her." In fact, the bonds had not been offered to the
dealer in one lot, but he had applied to a stock jobber, and
agreed to buy three at £112 each, but never completed the
purchase. Held, that S.'s letter was a sufficient written
direction within the meaning of 24-25 V., c. 96, sect. 75
(sect. 60, ante, of Canadian Statute) to apply the cheque
to a particular purpose, viz., in payment for the bonds. — R.
v. Christian, 12 Cox, 502.
Indictment, under sect. 60, against a banker for a
LARCENY. 417
fraudulent conversion of money intrusted to him. —
that A. B., on did intrust (J. D., as a
banker, with a certain large sum of money, to wit, the sum
of one hundred pounds, with a direction to the said C. D.
in writing to pay the said sum of money to a certain
person specified in the said direction, and that the said
C. D., as such banker as aforesaid, afterwards, to wit, on
in violation of good faith and contrary to the terms
of such direction, unlawfully did convert to his own use
and benefit the said sum of money so to him intrusted as
aforesaid against (In case of a security for money
the indictment must allege a written direction as to the
application of the proceeds. A count should be added
dating particularly the purpose to which the money was
to be applied, and the person to whom it was to be paid.)
—3 Burn, 320. See R. v. Cronmire, 16 Cox, 42.
Indictment, under sect. 60, against a banker, for selling
averting goods or valuable securities intrusted to
him for safe keeping, or for a special purpose "not" in
tcrit>7ig, — that A. B., on did intrust to C.
D. as a banker, for safe custody, a certain bid of exchange
the property of the said A. B., drawn by on
dated for the payment of the sum of one hundred
pounds, without any authority to sell, negotiate, transfer or
pledge the same ; and that the said C. D. then being such
banker, as aforesaid, and being so intrusted, as aforesaid,
in violation of good faith and contrary to the object and
purpose for which the said bill of exchange so intrusted to
him as aforesaid, and whilst so intrusted as aforesaid
unlawfully did negotiate, transfer and convert to his own
use and benefit, the said bill of exchange, against
(Add other counts, as the case may suggest. ) — 3 Burn, 320.
Indictments, under sections 61 and 62, may readily be
cc
418 LARCENY.
framed from the above, omitting the special allegations as
to safe custody, etc. — 3 Burn, 320.
Indictment under sect. 63 against a factor for pledg-
ing goods. — that A. B., on did intrust to
C. D., he, the said C. D. then being a factor and agent,
one hundred bales of cotton, of the value of one thousand
pounds, for the purpose of selling the same, and that the
said C. D. afterwards, contrary to and without the autho-
rity of the said A. B., for his own benefit, and in violation
of good faith, unlawfully did deposit the said cotton with
E. F. of as and by way of a pledge, lien and
security, for a sum of money, to wit, one hundred pounds,
by the said C. D. then borrowed and received of and from
the said E. F. against the — 3 Burn, 320.
Indictment under sect. 65, against a trustee for fraudu-
lent conversion. — The Jurors for Our Lady the Queen upon
their oath present, that, before and at the time of the
committing of the offences hereinafter mentioned, to wit,
on C. D. was a trustee for certain property, to wit,
five thousand pounds, three per centum Consolidated Bank
annuities wholly (or partially) for the benefit of J. N., and
that he, the said C. D. so being such trustee as aforesaid,
on the day and year aforesaid, unlawfully and wilfully did
convert and appropriate the said property to his own use,
with intent thereby then to defraud, against the form
(Add counts alleging that the defendant disposed of
showing the mode of disposition, or destroyed the pro-
perty, if necessary.) — 3 Burn, 321. See R. v. Town-
shend, 15 Cox, 466.
Indictment under seet. 66 against a director for frau-
dulent conversion of the company's money. — The Jurors
for Our Lady the Queen upon their oath present, that before
and at the time of the committing of the offence herein-
LAitCENY. 419
after mentioned, C. D. was a director of a certain public
company, called and that he, the said C. D., so
being such director as aforesaid, on the did unlaw-
fully and fraudulently take and apply for his own use
and benefit certain money, to wit, one thousand pounds, of
and belonging to the said company, against the — 3
Burn, 321.
Indictment, under sect 67 against directors for keep-
ing fraudulent accounts. — that C. D. on
then being a director of a certain body corporate, called
unlawfully did, as such director, receive and
possess himself of certain of the property of the said
body corporate, otherwise than in payment of a just
debt or demand, to wit, the sum of one hundred pounds,
and lawfully, with intent to defraud, did omit to make
a full and true entry of the said sum, in the books and
accounts of the said body corporate, against — 3
Burn, 321.
Indictment under sect. 68 against a director for
destroying or falsifying books, etc. — that C. D.
on then being a director of a certain body corporate,
called unlawfully, with intent to defraud, did des-
troy (alter, or mutilate, or falsify) a certain book (or
paper, or writing, or valuable security), to wit,
belonging to the said body corporate, against the form
—3 Burn, 321.
Indictment under sect. 69 against a director for pub-
lishing fraudulent statements. — that before and
at the time of the committing of the offences herein-
after mentioned, C. D. was a director of a certain public
company, called and that he, the said C. D., so
being such director as aforesaid, on did unlawfully
circulate and publish a certain written statement and
420 LARCENY.
account, which said written statement was false in certain
material particulars, that is to say, in this, to wit, that it
was therein falsely stated that (state the particulars), he
the said C. D. then well knowing the said written state-
ment and account to be false in the several particulars
aforesaid, with intent thereby then to deceive and defraud
J. N., then being a shareholder of the said public company
(or with intent ) against the form (Add counts
stating the intent to be to deceive and defraud " certain
persons to the jurors aforesaid unknown, being share-
holders of the said public company," and also varying
the allegation of the intent as in the section.) — 3 Burn,
321 ; Archbold, 467.
Offences against sects. 60 to 76 of Larceny Act, not
triable at quarter sessions. Sec. 6 Procedure Act.
As to who is an agent under sec. 60. See jR. v. Cosser,
13 Cox, 187.
The power of attorney mentioned in sec. 62 of the
Larceny Act, must be a written power of attorney. — R. v.
Chouinard, 4 Q. L. R. 220.
In an indictment of a trustee for fraudulently convert-
ing property, under sec. 65 of Larceny Act, it is sufficient
to set out that A. " being a trustee M did, etc., instead of
that A. " was a trustee and being such trustee " did
It is not necessary to set out the trust in the indictment.
— R. v. Stansfield, 8 L. N. 123.
OBTAINING MONEY BY FALSE PRETENCES.
77. Every one who, by any false pretence, obtains from any other
person any chattel, money or valuable security, with intent to defraud,
is guilty of a misdemeanor, and liable to three years' imprisonment;
2. Every one who, by any false pretence, causes or procures any
money to be paid, or any chattel or valuable security to be delivered
to any other person, for the use or benefit or on account of the person
LARCENY. 421
making such false pretence or of any other person, with intent to
defraud, shall be deemed to have obtained such money, chattel or
valuable security within the meaning of the next preceding sub-section.
—32-33 V., c. 21, s. 93, part, and s. 94.
The first part of this section is based on 24-25 V., c. 96,
s. 88 of the Imperial Act, the second part, on s. 89 of the
said Imperial Act. See sec. 198 of the Procedure Act.
By sect. 183 of the Procedure Act, upon an indictment
under any of these sections, the jury may return a verdict
of guilty of an attempt to commit the offence charged, if the
evidence warrants it. — R. v. Roebuck, Dears. & B. 24 ; R.
v. Eagleton, Dears. 376, 515; R. v. Rensler, 11 Cox,
570 ; R. v. Goff, 9 U. C. C. P. 438. A verdict under sec.
85 may also be given, sec. 201 Procedure Act. No indict-
ment can be preferred for obtaining money or other
property by false pretences, unless one or other of the
preliminary steps required by sect. 140 of the Procedure
Act has been taken.
By sec. 112 of the Procedure Act, in indictments for
obtaiuing or attempting to obtain under false pretences, a
general intent to defraud is a sufficient allegation, and it is
not necessary to allege any ownership of the chattel,
money or valuable security ; and on the trial, it is not
necessary to prove an intent to defraud any particular
person, but it is sufficient to prove that the defendant did
the act charged with an intent to defraud.
To constitute the offence of obtaining goods by false
preteuces, three elements are necessary. 1st, the statement
upon which the goods are obtained must be untrue ;
2nd, the prisoner must have known at the time he made
the statement that it was untrue ; 3rd, the goods must
have been obtained by reason and on the representation of
that false statement. — R. v. Burton, 16 Cox, 62.
422 LARCENY.
The following is quoted from an American case, reported
in 12 Cox, 208, the Commonwealth v. Yerker: "The
distinction between larceny and false pretences is a very
nice one in many instances. In some of the old English
cases the difference is more artificial than real, and rest
purely upon technical grounds. Much of this nicety is
doubtless owing to the fact that at the time these cases
were decided larceny was a capital felony in England, and
the judges naturally leaned to a merciful interpretation of
the law out of a tender regard for human life. But what-
ever may have been the cause, the law has come down to
us with such distinctions. The distinction between larceny
and false pretences is well stated in Russell on Crimes,
2nd Vol., 4th Edit. " The correct description in cases of
this kind seems to be that, if by means of any trick or
artifice the owner of property is induced to part with the
possession only, still meaning to retain the right of pro-
perty, the taking by such means will amount to larceny ;
but if the owner part with not only the possession of the
goods, but the right of property in them also, the offence
of the party obtaining them will not be larceny, but the
offence of obtaining goods by false pretences." See R. v.
Feithenheimer, 26 U. C. C. P. 139.
Indictment. — that J. S. on unlawfully,
knowingly and designedly did falsely pretend to one A. B.
that the said J. S. then was the servant of one 0. K., of
tailor, (the said 0. K. then and long before being
well known to the said A. B, and a customer of the said
A. B. in his business and way of trade as a woollen
draper), and that the said J. S. was then sent by the said
O. K. to the said A. B. for five yards of superfine woollen
cloth, by means of which said false pretences, the said J. S
did then unlawfully obtain from the said A. B. five yards
LARCENY. 423
of superfine woollen cloth, with intent to defraud ; whereas,
in truth and in fact, the said J. S. was not then the servant
of the said 0. K., and whereas in truth and in fact the said
J. S. was not then sent by the said 0. K. to the said A.
B. for the said cloth, or for any cloth whatsoever, as he the
said J. S. well knew at the time when he did so falsely
pretend as aforesaid, against the form — A rchbold.
By sec. 196 of the Procedure Act, if, upon the trial for
the misdemeanor provided for by this section, a larceny is
proved, on the facts as alleged, the prisoner is not, by reason
thereof, entitled to an acquittal. So far, this is in confor-
mity with the English Act but our statute goes further,
and, by section 198, provides that, if upon an indictment for
larceny, the facts proved establish an obtaining by false
pretences, the jury may find the defendant guilty of
such obtaining by false pretences. This constitutes an
importai t difference between the English statute and our
own statute on the subject. But it is probable that the rule
laid down in R. v. Gorbutt, Dears. & B. 166, would apply
here, and that, upon an indictment for larceny, if the facts
proved constitute an obtaining by false pretences, a general
verdict of guilty would be wrong. It would be finding the
defendant guilty of a felony, where a misdemeanor only
has been proved against him. — R. v. Adam, 1 Den. 38 ;
R. v. Rudge, 13 Cox, 17.
Moreover, in such a case, the only verdict authorized by
the statute, is " guilty of obtaining such property by false
pretences with intent to defraud," and such must be the
words of a verdict, under such circumstances. Under
section 196 of the Procedure Act, the words of the statute
are different, and, if larceny is proved, upon an indictment
for obtaining by false pretences, the verdict must be for
the latter. " Shall not by reason thereof be entitled to be
424 LARCENY.
acquitted of such misdemeanor" are the words of the
statute. See Greaves' note to R. v. Bryan, 2 Russ. 664.
It would have been impossible and against the spirit of the
law to allow a verdict for a felony upon an indictment for
a misdemeanor. — See sec. 184 of the Procedure Act.
A defendant indicted for misdemeanor in obtaining
money under false pretences, cannot under C. S. C. c. 99,
s. 62, be found guilty of larceny, that clause only autho-
rizes a conviction for the misdemeanor, though the facts
proved amount to larceny. — R. v. Ewing, 21 U. G. Q. B.
523; R. v. Berths, 13 U. C. G. P. 607.
The pretence must be set out in the indictment. — R. v.
Mason, 2 T. R. 581 ; R. v. Goldsmith, 12 Cox, 479. See
notes to form in 2d schedule of Procedure Act. And it
must be stated to be false. — R. v. Airey, 2 East, P. G. 30.
And it must be some existing fact; a pretence that the
defendant will do some act, or that he has got to do some
act is not sufficient. — R. v. Goodall, R. &. R. 461; R. v.
Johnston, 2 Moo. G. G 254 ; R. v. Lee, L. & G. 309. Where
the pretence is partly a misrepresentation of an existing
fact, and partly a promise to do some act, .the defendant
may be convicted, if the property is parted with in conse-
quence of the misrepresentation of fact, although the pro-
mise also acted upon the prosecutor's mind. — R. v. Fry,
Dears. & B. 449; R. v. West, Dears. & B. 575; R v.
Jennison, L. & G. 157.
Where the pretence, gathered from all the circumstances
was that the prisoner had power to bring back the hus-
band of the prosecutrix, though the words used were
merely promissory that she, the prisoner, would bring him
back, it was held a sufficient pretence of an existing fact,
and that it is not necessary that the false pretence should
be made in express words, if it can be inferred from all the
LARCEKY. 425
circumstances attending the obtaining of the property. —
R. v. Giles, L. & C. 502.
An indictment for obtaining money by false pretences
must state the false pretences with certainty, so that it
may clearly appear that there was a false pretence of an
existing fact ; where the indictment alleged that the pris-
oner pretended to A.'s representative that she was to give
him twenty shillings for B., and that A. was going to
allow B. ten shillings a week, it was held that ic did not
sufficiently appear that there was any false pretence of
an existing fact. — jR. v. Henshaw, L. & C. 444.
An indictment alleged that the prisoner obtained a coat
by falsely pretending that a bill of parcels of a coat, value
£0 14s. 6d. of which £0 4s. 6d. had been paid on account,
and £0 10s. Od. only was due, was a bill of parcels of
another coat of the value of twenty-two shillings. The evi-
dence was that the prisoner's wife had selected the £0 14s.
6d. coat for him, subject to its fitting him, and had paid £0
4s. 6d. on account, for which she received a bill of parcels
giving credit for that amount. On trying on the coat, it
was found to be too small, and the prisoner was then mea-
sured for one to cost twenty-two shillings. When that was
made, it was tried on by the prosecutor, who was not privy
to the former part of the transaction. The prisoner when
the coat was given to him handed the bill of parcels for
the £0 14s. 6d. and also £0 10s. Od. to the prosecutor, saying
" There is £0 10s. Od. to pay." The bill was receipted, and
the prisoner took the twenty-two shillings coat away with
him. The prosecutor stated that believing the bill of par-
cels to refer to the twenty-two shillings coat, he parted with
that coat on payment of £0 10s. Od. otherwise he should
not have done so ; Held, that there was evidence to support
a conviction on the indictment. — R. v. Steels, 11 Cox, 5.
426 LARCENY.
So the defendant may be convicted, although the pre-
tence is of some existing fact, the falsehood of which might
have been ascertained by inquiry by the party defrauded. —
R. v. Wickham, 10 A. & E. 34; R. v. Woolley, 1 Den.
559 ; R. v. Ball, C. & M. 249 ; R. v Roebuck, Dears. & B.
24 ; or against which common prudence might have guard-
ed; R. v. Young, 3 T. R. 98 ; R. v. Jessop, Dears. & B. 442 ;
R. v. Hughes, IF. & F. 355. If, however, the prosecutor
knows the pretence to be false, R. v. Mills, Dears. & B.
205 ; or does not part with the goods in consequence of
defendant's representation, R. v. Roebuck, Dears. &B. 24 ;
or parts with them before the representation is made, R.
v. Brooks, 1 F. & F. 502 ; or in consequence of a represen-
tation as to some future fact, R. v. Dale, 7 C. & P. 352 ; or
if the obtaining of the goods is too remotely connected with
the false pretence, which is a question for the jury, R. v.
Gardner, Dears. & B. 40 ; R. v. Martin, 10 Cox, 383 ; or
if the prosecutor continues to be interested in the money
alleged to have been obtained, as partner with the defendant,
R. v. Watson, Dears. & B. 348 ; R. v. Evans, L. & C. 252 ;
or the object of the false pretence is something else than
the obtaining of the money, R. v. Stone, IF. & F. 311,
the defendant cannot be convicted.
Falsely pretending that he has bought goods to a certain
amount, and presenting a check-ticket for them, R. v.
Barnes, 2 Den. 59 ; or overstating a sum due for dock
dues or custom duties, jR. v. Thompson, L. & C. 233, will
render the prisoner liable to be convicted under the statute.
(See reporter's note to this last case.)
The pretence need not be in words, but may consist of
the acts and conduct of the defendant. Thus the giving a
cheque on a banker, with whom the defendant has no
account, R. v. Flint, R. & R. 460 ; R. v. Jackson, 3 Camp.
LAECENT. 427
370 ; R. v. Parker, 2 Moo. C. C. 1 ; it!, v. Spencer, 3 C.
& P. 420 ; R. v. Wickman, 10 A. <k E. 34; R. v. Phil-
pott, 1 C. & K. 112; i2. v. JVe^A, iZ. <fc R. 127, or the
fraudulently assuming the name of another to whom money
is payable, R. v. Story, R. & R. 81 ; i2. v. Jozies, 1 Ben,
551; or the fraudulently assuming the dress of a member
of one of the universities, R. v. Barnard, 2 C. & P. 784,
is a false pretence within the statute.
The prisoner obtained a sum of money from the prose-
cutor by pretending that he carried on an extensive busi-
ness as an auctioneer and house agent, and that he wanted
a clerk, and that the money was to be deposited as security
for the prosecutor's honesty as such clerk. The jury found
that the prisoner was not carrying on that business at all :
Held, that this was an indictable false pretence. — R. v.
Crab, 11 Cox, 85 ; R v. Cooper, 13 Cox, 617.
The defendant, knowing that some old country bank
notes had been taken by his uncle forty years before, and
that the bank had stopped payment, gave them to a man to
pass, telling him to say, if asked about them, that he had
taken them from a man he did not know. The man passed
the notes, and the defendant obtained value for them. It
appears that the bankers were made bankrupt : Held, that
the defendant was guilty of obtaining money by false pre-
tences, and that the bankruptcy proceedings need not be
proved. — R. v. Bouey, 11 Cox, 115.
The indictment alleged that the prisoner was living apart
from her husband under a deed of separation, and was
in receipt of an income from her husband, and that he was
not to be liable for her debts, yet that she falsely pretend-
ed to the prosecutor that she was living with her husband,
and was authorized to apply for and receive from the pros-
ecutor goods on the account and credit of her husband, and
428 LAECENY.
that her husband was then ready and willing to pay for
the goods. The evidence at the trial was that the prisoner
went to the prosecutor's shop and selected the goods, and
said that her husband would give a cheque for them as
soon as they were delivered, and that she would send the
person bringing the goods to her husband's office, and that he
would give a cheque. When all the goods were delivered,
the prisoner told the man who delivered them to go to her
husband's office, and that he would pay for them. The
man went, but could not see her husband, and ascertained
that there was a deed of separation between the prisoner
and her husband, which was shown to him. He commu-
nicated what he had learned to the prisoner, who denied the
deed of separation. The goods were shortly after removed
and pawned by the prisoner. The deed of separation be-
tween the prisoner and her husband was put in evidence,
by which it was stipulated that the husband was not to pay
her debts ; and it was proved that she was living apart from
her husband, and receiving an annuity from him, and that
she was also cohabiting with another man : Held, that the
false pretences charged were sufficiently proved by this
evidence. — R, v. Davis, 11 Cox, 181.
On an indictment for fraudulently obtaining goods in
a market by falsely pretending that a room had been
taken at which to pay the market people for their goods,
the jury found that the well known practice was for
buyers to engage a room at a public house, and that the
prisoner, pretending to be a buyer, conveyed to the minds
of the market people that she had engaged such a room,
and that they parted with their goods on such belief:
Held, there being no evidence than the prisoner knew of
such a practice, and the case being consistent with a
promise only on her part to engage such a room and pay
LARCENY. 429
for the goods there, the conviction could not be sustained. —
R. v. Buri'oivs, 11 Cox, 258.
On the trial of an indictment against the prisoner for
pretending that his goods were unencumbered, and obtaining
thereby eight pounds from the prosecutor with intent to
defraud, it appeared that the prosecutor lent money to the
prisoner at interest, on the security of a bill of sale on
furniture, a promissory note of prisoner and another person
and a declaration made by prisoner that the furniture was
unencumbered. The declaratiou was untrue at the time it
was handed to the prosecutor, the prisoner having a few
hours before given a bill of sale for the furniture to
another person, but not to its full value : Held, that there
was evidence to go to the jury in support of a charge of
obtaining money by false pretences. — R. v. Meakin, 11
Cox, 270.
A false representation as to the value of a business will
not sustain an indictment for obtaining money by false
pretences. On an indictment for obtaining money by false
pretences, it appeared that the prisoner, on engaging an
assistant from whom he received a deposit, represented to
him that he was doing a good business, and that he had
sold a good business for a certain large sum, whereas the
business was worthless and he had been bankrupt : Held,
that the indictment could not be sustained upon either of
the representations. — R. v. Williamson, 11 Cox, 328.
It has been seen, ante, that in R. v. Mills, Dears, d- B.
2<)5, it was held, that the defendant cannot be convicted, if
the prosecutor knows the pretence to be false. The defen-
dant, however, in such cases may, under sect. 183 of the
Procedure Act, be found guilty of an attempt to commit the
offence charged. Or be, in the first instance, indicted for
the attempt. In R. v. Hensler, 11 Cox, 570, the prisoner
430 LARCENY.
was indicted for attempting to obtain money by false
pretences in a begging letter. In reply to the letter the
prosecutor sent the prisoner five shillings ; but he stated in
his evidenee at the trial that he knew that the statements
contained in the letter were untrue ; it was held, upon a
case reserved that the prisoner might be convicted, on this
evidence, of attempting to obtain money by false pretences.
But an indictment for an attempt to obtain property by
false pretences must specify the attempt. — R. v. Marsh, 1
Den. 505. The proper course is to allege the false pretences,
and to deny their truth in the same manner as in an indict-
ment for obtaining property by false pretences, and then to
allege that by means of the false pretences, the prisoner
attempted to obtain the property. Note by Greaves, 2 Russ.
698. But it must be remembered that by sect. 185 of the
Procedure Act, " no person shall be tried or prosecuted for
an attempt to commit any felony or misdemeanor, who has
been previously tried for committing the same offence."
An indictment charged that the prisoner falsely pretended
that he had got a carriage and pair, and expected it down
to T. that day or the next, and that he had a large property
abroad. The evidence was that the prisoner was at E.,
assuming to be a man of position and wealth, but was in a
destitute condition, and could not pay his hotel and other
bills. That three days after he came to T. and induced
prosecutor to part with goods on the representation that he
had just come from abroad and had shipped a large quan-
tity of wine to R. from England, and expected his carriage
and pair to come down, and that he had taken a large
house at T., and was going to furnish it : Held, that the
false pretences charged were sufficient in point of law, and
also that the evidence was sufficient to sustain a convic-
tion.— R. v. Howarth, 11 Cox, 588.
LAKCENT. 431
Prisoner was indicted for obtaining from George Hislop,
the master of the warehouse of the Strand Union, one pint of
milk and one egg, by falsely pretending that a certain child
then brought by him had been by him found in Leicester
Square, whereas these facts were untrue. The facts were
that the prisoner was waiter at an hotel in George Street,
Hanover Square. A female servant there, named Spires,
had been delivered of a child by him, which was put out
to nurse. The child falling ill, the nurse brought it to the
hotel, and the prisoner, saying that he would find another
nurse, took the woman with him to Westminster, where
the nurse put the child into his arms and went away. He
took it to the work-house of St. Martin- in-the- Fields, which
is in the Strand Union, and delivered it to the master,
stating that he had found it in Leicester Square. It was
by the master delivered to the nurse to be taken care of,
and the nurse fed it with the pint of milk and egg which
was the subject of the charge of the indictment as the
property obtained by the false pretences alleged : Held,
that this evidence did not sustain the indictment, and that
the food given to the child was too remote an object. — R.
v. Carpenter, 11 Cox, 600.
In R. v. Walne, 11 Cox, 647, the conviction was also
quashed, on the deficiency of the evidence, as no false
pretence of an existing fact was proved. — See R. v. Speed,
15 Cox, 24.
Prisoner by falsely pretending to a liveryman that he
was sent by another person to hire a horse for him for a
drive to E. obtained the horse. The prisoner returned in
the same evening but did not pay for the hire : Held, that
this was not an obtaining of a chattel with intent to defraud
within the meaning of the statute. To constitute such an
offence, there must be an intention to deprive the owner of
432 LARCENY.
the property. — R. v. Kilham, 11 Cox, 561. But see now,
for Canada, sec. 85, post.
There may be a false pretence made in the course of a
contract, by which money is obtained under the contract ;
R. v. Kenrick, D. & M. 208 ; R. v. Abbott, 2 Cox, 430;
R. v, Burgon, Dears. & B. 11 ; R. v. Roebuck, Dears. &
B. 24 ; as to weight or quantity of goods sold when sold
by weight or quantity, R. v. Sherwood, Dears. SB. 251 ;
R. v. Bryan, Dears. & B. 265 ; R. v. Ragg, Bell, C.
C. 211 ; E. v. Goss, £eM, C. C. 208 ; i2. v. Lees, L. & C.
418 ; R. v. Ridgway, 3 F.& F. 838 ; but, in all such cases,
there must be a misrepresentation of a definite fact.
But a mere false representation as to quality is not
indictable ; R. v. Bryan, Dears. & B. 265, and the com-
ments upon it by the judges, in Ragg's case, Bell, C. C.
214; R. v. Pratt, 8 Cox, 334. See R. v. Foster, 13
Cox, 393. Thus representing a chain to be gold, which
turns out to be made of brass, silver and gold, the latter
very minute in quantity, is not within the statute. — R,
v. Lee, 8 Cox, 233 ; sed qucere ? And see Greaves' obser-
vations, 2 Russ. 664, and R. v. Suter, 10 Cox, 577 ;
also, R. v. Ardley, 12 Cox, 23 post.
It is not a false pretence, within the statute, that more
money is due for executing certain work than is actually
due ; for that is a mere wrongful overcharge. — R. v.
Oates, Dears 459. So, where the defendant pretended
to a parish officer, as an excuse for not working, that he
had no clothes, and thereby obtained some from the
officer, it was held that he was not indictable, the state-
ment being rather a false excuse for not working than a
false pretence to obtain goods. — R. v. Wakeling, R. &. R.
504.
Where the prisoner pretended, first, that he was a
LABCENY. 433
single man, and next, that he had a right to bring an
action for breach of promise, and the prosecutrix said that
she was induced to pay him money by the threat of the
action, but she would not have paid it had she known
the defendant to be a married man, it was held that either
of these two false pretences was sufficient to bring the
case within the statute. — R. v. Copeland, C. <b M. 516;
R. v. Je unison, L. & C. 157.
Where the prisonner represented that he was connected
with J. S., and that J. S. was a very rich man, and
obtained goods by that false representation, it was held
within the statute. — R. v. Archer, Dears. 4-49. Obtaining
by falsely pretending to be a medical man or an attorney
is within the statute. — R. v. Bloomfield, C. & M. 537;
R. v. Asterley, 7 C. & P. 191.
It is no objection that the moneys have been obtained
only by way of a loan, R. v. Crossley, 2 M. <L- Rob. 17;
but perhaps this is true only of moneys, and not of other
goods, 2 Russ. 668, and R. v. Kilham, 11 Cox, 561.
Obtaining goods by false pretences intending to pay
for them is within the statute. — R. v. Naylor, 10 Cox,
149.
It must be alleged and proved that the defendant knew
the pretence to be false at the time of making it. — R. v.
E'rnderaon, 2 Moo. C C. 192 ; R. v. Philpotts, 1 C. £ K.
112. After verdict, however, an indictment following the
words of the statute is sufficient. — R. v. Bowen, 3 Cox,
483 ; Hamilton v. R. in error, 2 Cox, 11. It is no
defence that the prosecutor laid a trap to draw the prisoner
into the commission of the offence. — R. v. Adamson, 2
Moo. C. C. 286 ; R. v. Ady, 7 C. & P. 140.
Upon a charge of obtaining money by false pretences
it is sufficient if the actual substantial pretence, which is
DD
434 LAR 1ENY.
the main inducement to part with the money, is alleged
in the indictment, and proved, although it may be shewn
by evidence that other matters not laid in the indictment
in some measure operated upon the mind of the prose-
cutor as an inducement for him to part with his money. —
R. v. Hewgill, Dears. 315. The indictment must nega-
tive the pretences by special averment, and the false
pretence must be proved as laid. Any variance will be
fatal, unless amended. 3 Burn, 277. But proof of part
of the pretence, and that the money was obtained by such
proof is sufficient.— R. v. Hill, R. & R. 190 ; R. v. Wick-
ham, 10 A. & E. 34 ; R. v. Bates, 3 Cox, 201.
But the goods must be obtained by means of some of
the pretences laid.— JR. v. Dale, 7 C. & P. 352 ; R. v.
Runt, 8 Cox, 495; R. v. Jones, 15 Cox, 475. And
where the indictment alleged a pretence which in fact the
prisoner did at first pretend, but the prosecutor parted
with his property in consequence of a subsequent pretence,
which was not alleged, it was held that the evidence did
not support the indictment. — R. v. Buhner, L & C. 476.
Where money is obtained by the joint effect of several
misstatements, some of which are not and some are false
pretences within the statute, the defendant may be con-
victed, R. v. Jennison, L. & C. 157 ; but the property
must be obtained by means of one of the false pretences
charged, and a subsequent pretence will not support the
indictment.— R. v. Brooks, 1 F. & F. 502.
Parol evidence of the false pretence may be given,
although a deed between the parties, stating a different
consideration for parting with the money is produced,
such deed having been made for the purpose of the fraud. —
R. v. Adamson, 2 Moo. C. G. 286. So also parol evidence
of a lost written pretence may be given. — R. v. Chad wick.
LABCENY. 435
6 C. & P. 181. — On an indictment for obtaining money
from A., evidence that the prisoner about the same time
obtained money from other persons by similar false pre-
tences is not admissible. — R. v. Holt, 8 Cox, 411 ; Bell,
C. C. 280. But other false pretences at other times to the
same person are admissible, if they are so connected as
to form one continuing representation, which it is the
province of the jury to determine. — R. v. Welman, Dears.
188 ; 6 Cox, 153.
Inducing a person by a false pretence to accept a bill of
exchange is not within this section. — R. v. Danger, Dears.
6 B. 307. In such a case the indictment should be under
sect. 78, post.
A railway ticket obtained by false pretences is within
the statute, R. v. Boulton, 1 Den. 508 ; R. v. Beecham,
5 Cox, 181; and so is an order by the president of a burial
society on a treasurer for the payment of money. — R. v.
Greenhaigh, Dears. 267.
Where the defendant only obtains credit and not any
specific sum by the false pretences, it is not within the
statute.— R. v. Wavill, 1 Moo. C. C. 224 ; R. v. Garrett,
Dears. 233; R. v. Crosby, 1 Cox, 10.
There must be an intent to defraud. Where C. B.'s
servant obtained goods from A.'s wife by false pretences, in
order to enable B., his master, to pay himself a debt due
from A., on which he could not obtain payment from A., it
was held that C. could not be convicted. — R. v. Williams,
7 C. & P. 554. But it is not necessary to allege nor
to prove the intent to defraud any person in particular.
With intent to defraud are the words of the statute.
But these words " with intent to defraud " are a material
and necessary part of the indictment ; their omission is
fatal, and cannot be remedied by an amendment inserting
them. By Lush, J., R. v. James, 12 Cox, 127.
436 LARCENY.
An indictment for false pretences charged that the
defendant falsely pretended that he had a lot of trucks of
Coal at a railway station on demurrage, and that he required
forty coal bags. The evidence was that defendant saw
prosecutor and gave him his card, " J. W. and Co., timber
and coal merchants," and said that he was largely in the
coal and timber way, and inspected some coal bags, but
objected to the price. The next day, he called again,
showed prosecutor a lot of correspondence, and said that he
had a lot of trucks of coal at the railway station under
demurrage, and that he wanted some coal bags imme-
diately. Prosecutor had only forty bags ready, and it was
arranged that defendant was to have them, and pay for
them in a week. They were delivered to defendant, and
prosecutor said he let the defendant have the bags in
consequence of his having the trucks of coal under demur-
rage, at the station ; there was evidence as to the defen-
dant having taken premises, and doing a small business in
coal, but he had no trucks of coals on demurrage at the
station. The jury convicted the prisoner, and on a case
reserved, the judges held, that the false pretence charged
was not too remote to support the indictment, and that the
evidence was sufficient to maintain it, — R. v. Willotj 12
Cox, 68.
The prisoner induced the prosecutor to buy a chain by
knowingly and falsely asserting, inter alia, "it is a 15-
carat fine gold, and you will see it stamped on every link."
In point of fact, it was little more than 6-caratgold : Held,
upon a case reserved, that the above assertion was suffi-
cient evidence of the false representation of a definite
matter of fact to support a conviction for false pretences. —
R. v. Ardley, 12 Cox, 23 ; R. v. Bryan, Dears. & B. 265,
was said by the judges not to be a different decision,
LARCENY. 437
but that there was no definite matter of fact falsely repre-
sented.
On an indictment for inducing the prosecutor, by means
of false pretences, to enter into an agreement to take a
field for the purpose of brick-making, in the belief that the
soil of the field was fit to make bricks, whereas it was not,
he being himself a brickmaker, and having inspected the
field and examined the soil : Held, that nevertheless, if he
had been induced to take the field by false and fraudulent
representations by the defendant of the specific matters of
fact relating to the quality and character of the soil, as, for
instance, that he had himself made good bricks therefrom,
the indictment would be sustained : Held, also, that it
would be sufficient, if he was partly and materially, though
not entirely, influenced by the false pretences. — R. v.
English, 12 Cox, 171.
The prisoner had obtained goods from the prosecutor,
upon the false pretences, as charged in the indictment, that
he then lived at and was then the landlord of a certain
beer house. At the trial, it was proved that the prisoner
had never stated that he was the landlord of the beer house,
but only that he lived there. Held, that he was guilty of
the offence charged ; that the statement might be divided,
and that it is sufficient to prove part only of the false pre-
tences charged. Also, that it is immaterial that the pros-
ecutor was influenced by other circumstances than the
false pretence charged. — R. v. Lince, 12 Cox, 451.
If the possession only and not the property has been
passed by the prosecutor, the offence is larceny and not
false pretences. — R. v. Radcliffe, 12 Cox, 474.
All persons who concur and assist in the fraud are
principals, though not present at the time of making the
pretence or obtaining the property. — R. v. Mooland, 2
Moo. C. C. 376 ; R. v. Kerrigan, L. & C. 383.
438 LARCENY.
If, upon the trial of an indictment for obtaining by
false pretences, a forgery is proved, the prisoner never-
theless, if the fact proved include the misdemeanor, may
be convicted of the misdemeanor, unless the Court see
fit to discharge the jury, and direct the prisoner to be
indicted for the felony: sec. 184 of the Procedure Act.
And it is prudent, in consequence of this section, to
indict for obtaining money by false pretences, wherever
it is doubtful whether an instrument be a forgery or not.
— 2 Buss. 677.
On the second part of this section 77, Greaves says :
" This clause is new. It is intended to meet all cases
where any person by means of any false pretence, induces
another to part with property to any person other than
the party making the pretence. It was introduced to get
rid of the narrow meaning which was given to the word
4 obtain ' in the judgments in R. v. Garrett, Dears. 232,
according to which it would have been necessary that the
property should either have been actually obtained by
the party himself, or for his benefit This clause
includes every case where a defendant by any false pretence
causes property to be delivered to any other person, for
the use either of the person making the pretence, or of
any other person. It, therefore, is a very wide extension
of the law as laid down in R. v. Garrett, and plainly
includes every case where any one, with intent to defraud,
causes any person by means of any false pretence to part
with any property to any person whatsoever."
Prisoner was indicted for an attempt to obtain money
from a pawnbroker by false pretences, (inter alia) that a
ring was a diamond ring. To show guilty knowledge,
evidence that he had shortly before offered other false
articles of jewellery to other pawnbrokers was held to be
properly admissible. — R. v. Francis, 12 Cox, 612.
LABOENT. 439
Goods fraudulently obtained by prisoLer on his cheque
on a bank where he had no funds : Held, that he can-
not be found guilty of having falsely represented that
he had money in the bank, but that he "was guilty of
falsely representing that he had authority to draw the
cheque, and that they were good and valid ordeis for the
payment of money. — R. v. Hazellon, 13 Cox, 1.
See R. v. Holmes, 15 Cox, 343, as to where is the
jurisdiction when offence is committed by a letter.
Prisoner convicted of obtaining his wages by false
pretences in representing falsely that he had performed, a
condition precedent to his right to be paid. — R. v. Bull,
13 Cox. 608.
The indictment must state the pretence which ie
pretended to have been false, and must negative the truth
of the matter so pretended with precision. — R. v. Kelleher,
14 Cox, 48. See R. v. Perrott, 2 M. & S. 379.
Obtaining by false pretences. What constitutes false
pretences. — R. v. Durocher, 12 R. L. 697 ; R. v. Judah,
7 L. N. 385.
To prove intent to defraud, evidence of similar frauds
having recently been practised upon others is admissible.
—R. v. Durocher, 12 R. L. 697.
An indictment for obtaining board under false pretences,
is too general.— R. v. McQuarrie, 22 U. C. Q. B. 600.
A clause of a deed by which the borrower of a sum of
money falsely declares a property well and truly to belong
to him may constitute a false pretence. — R. v. Judah, 8
i. JV. 122.
On a trial for obtaining under false pretences pro-
perty of a joint stock company, parol evidence that the
company has acted as an incorporated company is
sufficient evidence of its incorporation. — R. v. Langton,
13 Cox, 345.
440 LARCENY.
The prisoner who had been discharged from the service
of A. went to the store of D. and S. and represented
herself as still in the employ of A., who was in the habit
of dealing there, and asked for goods in A.'s name, which
were put up accordingly, but sent to A.'s house instead of
being delivered to the prisoner. The prisoner, however,
went directly from the store to A.'s house, and remaining
in the kitchen with the servant until the clerk delivered
the parcel, snatched it from the servant, saying " that is
for me, I was going to see A." but, instead of going in to
see A., went out of the house with the parcel. — Conviction
for having obtained goods from D. & S. by false pretences,
held good.— R. v. Robinson, 9 L. C. R. 278.
Where the prosecutor had laid a trap for the prisoner
who had writien to induce him to buy counterfeit notes,
and prisoner gave him a box which he pretended contained
the notes, but which, in fact, contained waste paper and
received the prosecutor's watch and $50.
Held, that the prisoner was rightly convicted of obtain-
ing the prosecutor's property under false pretences. — The
Queen v, Corey, 22 N. B. Rep. 543.
78. Every one who, with intent to defraud or injure any other
person, by any false pretence fraudulently causes or induces any
other person to execute, make, accept, indorse or destroy the whole
or any part of any valuable security, or to write, impress or affix his
name, or the name of any other person, or of any company, firm or
co-partnership, or the seal of any body corporate, company or society,
upon any paper or parchment, so that the same may be afterwards
made or converted into or used or dealt with as a valuable security, is
guilty of a misdemeanor, and liable to three years' imprisonment. —
32-33 V., c. 21, s. 95. 24-25 V., c. 96, s. 90, Imp.
7i>. Every one who, for any purpose or with any intent, wrongfully
and with wilful falsehood, pretends or alleges that he inclosed and
sent or caused to be inclosed and sent in any post letter, any money,
valuable security or chattel, which, in fact, he did not so inclose and
LARCENY. 441
send, or cause to Ve inclosed and sent therein, is guilty of a misde
meanor, and liable to be punished as if he had obtained the money,
valuable security or chattel so pretended to be inclosed or sent by
false pretences.— 32-33 V., c 21, s. 96, part.
Not in the English Act.
See sec 113 Procedure Act as to this clause 79.
On clause 78, Greaves says : " This clause is principally,
new it will include such cases as R. v. Danger,
Dears. & B. 307."
Indictment. — that A. B., on unlawfully,
knowingly and designedly did falsely pretend to one J. N.
that by means of which false pretence the said A.
B. did then unlawfully and fraudulently induce the said
J. N. to accept a certain bill of exchange, that is to say a
bill of exchange for one hundred pounds, with intent
thereby then to defraud and injure the said J. N., whereas,
in truth and in fact (here negative the Jalse pretences, as
in the form, under sect. 77, ante) against the form
Prisoner was indicted at the Court of Queen's Bench for
having induced, by false and fraudulent pretences, one B.,
a fanner, to endorse a promissory note for $170.45 and
moved to quash on the ground that the indictment did not
state that the endorsement in question had been declared
false in any manner by competent authority, etc., nor that
the said endorsement had been obtained for the purpose of
converting the said note or paper-writing into money.
Motion rejected. And a motion to quash, on the ground
that the crown prosecutor, representing the attorney gene-
ral, had refused to furnish to prisoner the particulars of the
false pretences charged, although demanded, was refused.
— R. v. Boucher, 10 R. L. 183.
Proof that the defendant had obtained from the prosecu-
tor a promissory note on a promise to pay the plaintiff what
442 LARCENY.
he owed him out of the proceeds of tt»3 note when discount-
ed is not sufficient to sustain a conviction of obtaining a
signature with intent to defraud under section. 78. — R. v.
Pickup, 10 L. C. J. 310.
80. Every one who, by any fraud or unlawful device or ill practice
in playing any game of cards or dice, or of any other kind, or at any
race, or in betting on any event, wins or obtains any money or property
from any other person, shall be held to have unlawfully obtained the
same by false pretences, and shall be punishable accordingly. — 32-33
V., c 21, *• 97. 8-9 V., c. 109, *. 17, Imp.
Indictment. — The Jurors for Our Lady the Queen, upon
their oath present, that W. M., on ....by fraud, unlaw-
ful device and ill-practice in playing at and with cards,
unlawfully did win from one A. B., and obtain for himself,
the said W. M., a sum of money, to wit, fifty pounds, of
the monies of the said A. B., and so the jurors aforesaid,
upon their oath aforesaid, do say that the said W. M. then,
in manner and form aforesaid, unlawfully did obtain the
said sum of money, to wit, fifty pounds, so being the monies
of the said A. B. as aforesaid, from the said A. B. by a
false pretence, with intent to cheat and defraud the said
A. B. of the said sum of money, to wit, fifty pounds,
against the form of the statute in such case made and
provided, and against the peace of Our Lady the Queen, her
crown and dignity.
(2nd count) : And the jurors aforesaid, upon their oath
aforesaid, do further present, that the said W. M. afterwards,
to wit, on the day and year aforesaid, by fraud, unlawful
device and ill-practice, in playing at and with cards, unlaw-
fully did win from the said A. B.and obtain for himself, the
said W.M., a certain sum of money with intent to cheat him,
the said A. B., to the evil example of all others in the like
case offending, against the form of the statute in such
LARCENY. 443
case made and provided, and against the peace of Our
Lady the Queen, her crown and dignity. — Archbold.
An indictment in the form contained in the above second
count was held good after verdict, although it was objected
that it should have alleged that the money won was the
property of the person defrauded. — jR. v. Moss, Dears. <k
B. 104.
"Where the offence was committed by two or more, and
there is any doubt whether the game or fraud comes within
this section, a count should be added as in R. v. Hudson,
Bell, C. C. 263, charging a conspiracy to cheat.
The fraud or unlawful device, or ill-practice must be
proved. — R. v. Darmdy, 1 Stark. R. 259 ; R. v. Rogier,
2 D. d' R. 431. It does not seem necessary to state the
name of the game. — Archbold. SeeR.y. Bailey, 4 Cox,
390.
Winning by fraud at tossing with coins falls under this
section. — R. v. O'Connor, 15 Cox, 3.
81. Every one who, by means of any false ticket or order, or of
any other ticket or order, fraudulently and unlawfully obtains or
attempts to obtain any passage on any railway, or in any steam or
other vessel, is guilty of a misdemeanor, and liable to six months'
imprisonment.— 32-33 V., c. 21, s. 98.
The clause provides for the offence and the attempt to
commit the offence Under sect. 183 of the Proce-
dure Act, upon the trial of an indictment for any offence
against this clause, the jury may convict of the attempt to
commit the offence charged, if the evidence warrants it.
RECEIVING STOLEN GOODS.
82. Every one who receives any chattel, money, valuable security
or ether property whatsoever, the stealing, taking, extorting, obtaining,
embezzling and otherwise disposing whereof amounts to felony, either
at common law or by virtue of this Act, knowing the same to have
444 LARCENY.
been feloniously stolen, taken, extorted, obtained, embezzled or
disposed of, is guilty of felony, and liable to fourteen years' impris-
onment—32-33 V., c. 21, s. 100, part. 24-25 V., c. 96, s. 91, Imp.
83. Every one who receives any chattel, money, valuable security
or other property whatsoever, the stealing, taking, obtaining, convert-
ing or disposing whereof is made a misdemeanor by this Act, knowing
the same to have been unlawfully stolen, taken, obtained, converted
or disposed of, is guilty of a misdemeanor, and liable to seven years'
imprisonment.— 32-33 V., c. 21, s. 104, part. 24-25 F., c. 96, s. 95,
Imp.
84. Every one who receives any property whatsoever, knowing the
same to be unlawfully come by, the stealing or taking of which
property is by this Act punishable on summary conviction, either for
every offence, or for the first and second offence only, shall, on sum-
mary conviction, be liable, for every first, second or subsequent offence
of receiving, to the same forfeiture and punishment to which a person
guilty of a first, second or subsequent offence of stealing or taking
such property is by this Act liable.— 32-33 V., c 21, s. 106. 24-25 V.,
c 96, s. 97, Imp.
See sec. 20 of Procedure Act, as to venue.
Clause 82 applies to all cases where property has been
feloniously extorted, obtained, embezzled, or otherwise
disposed of, within the meaning of any section of this act.
— Greaves, Cons. Acts, 179.
See sees. 135, 136, 137, 138, 199,200, 203, and 204 of
the Procedure Act.
As to the meaning of the words " valuable security,"
" property " and " having in possession," see, ante, sect. 2.
Indictment against a receiver of stolen goods, under
sect. 82, as for a substantive felony. — that A. B.}
on at one silver tankard, of the goods and chattels
of J. N". before then feloniously stolen, taken and carried
away, feloniously did receive and have, he the said A. B.
at the time when he so received the said silver tankard
as aforesaid, then well knowing the same to have been
feloniously stolen, taken and carried away, against the
form Archbo Id, 434.
LARCENY. 445
Any number of receivers at different times of stolen
property may now be charged with substantive felonies in
the same indictment. Sec. 138 Procedure Act.
And where the indictment contains several counts for
larceny, describing the goods stolen as the property of dif-
ferent persons, it may contain the like number of counts,
with the same variations, for receiving the same goods. —
JR. v. Beeton, 1 Den. 414. It not necessary to state by
whom the principal felony was committed, R. v. Jervis, 6
ft & P. 156 ; and, if stated, it is not necessary to aver
that the principal has not been convicted. R. v. Baxter,
5 T. R. 83. Where an indictment charged Woolford with
stealing a gelding, and Lewis with receiving it, knowing it
to have been " so feloniously stolen as aforesaid," and
Woolford was acquitted, Patteson, J., held that Lewis
could not be convicted upon this indictment, and that he
might be tried on another indictment, charging him with
having received the gelding, knowing it to have been stolen
by some person unknown. — jR. v. Woolford, 1 M. <t Rob.
384 ; 2 Russ. 55G.
An indictment charging that a certain evil-disposed
person feloniously stole certain goods, and that C. D. and
E. F. feloniously received the said goods, knowing them
to be stolen, was holden good against the receivers, as
for a substantive felony. — R. v. Caspar, 2 Moo. C. C. 101.
The defendant may be convicted both on a count charging
him as accessory before the fact and on a count for receiv-
ing.— R. v. Hughes, Bell, C. C. 242.— The first count of
the indictment charged the prisoner with stealing certain
goods and chattels ; and the second count charged him
with receiving " the goods and chattels aforesaid of the
value aforesaid, so as aforesaid feloniously stolen." He
was acquitted on the first count but found guilty on the
446 LARCENY.
second: Held, that the conviction was good. — R. v.
Huntley, Bell, G G 238 ; R. v. Graddock, 2 Den. 31.
Indictment against the principal and receiver jointly.
i — The Jurors for Our Lady the Queen, upon their oath
present that C. D. on at one silver spoon
and one table-cloth, of the goods and chattels of A. B.,
feloniously did steal, take and carry away, against the
peace of Our Lady the Queen, her crown and dignity ;
and the jurors aforesaid, upon their oath aforesaid, do
further present, that J. S. afterwards, on the goods and
chattels aforesaid, so as aforesaid feloniously stolen, taken
and earned away, feloniously did receive and have, he the
said J. S. then well knowing the said goods and chattels to
have been feloniously stolen, taken and carried away,
against the form Archbold, 440 ; 3 Burn, 323.
Indictment against the receiver as accessory, the prin-
cipal having been convicted. — The Jurors for Our Lady
the Queen upon their oath present, that heretofore, to wit,
at the general sessions of the holden at on
it was presented, that one J. T. (continuing the for-
mer indictment to the end ; reciting it, however, in the
past and not in the present tense : ) upon which said
indictment the said J. T., at aforesaid, was duly
convicted of the felony and larceny aforesaid. And the
jurors aforesaid, upon their oath aforesaid, do further pre-
sent, that A. B. after the committing of the said larceny
and felony as aforesaid, to wit, on the goods and
chattels aforesaid, so as aforesaid feloniously stolen, taken
and carried away, feloniously did receive and have, he
the said A. B. then well knowing the said goods and
chattels to have been feloniously stolen, taken and carried
away, against the from Archbold, 440.
Indictment against a receiver, under sect. 83, when
LARCEXY. 447
the principal offence is a misdemeanor. — on
at one silver tankard of the goods and chattels of J.
N. then lately before unlawfully, knowingly, and designedly
obtained from the said J.N. by false pretences, unlawfully
did receive and have, he the said A. B. at the time when
he so received the said silver tankard as aforesaid, then
well knowing the same to have been unlawfully, know-
ingly, and designedly obtained from the said J. N. by false
pretences against the form Archbold, 439.
The indictment must allege the goods to have been
obtained by false pretences, and known to have been so ;
it is not enough to allege them to have been " unlawfully
obtained, taken and carried away." — R. v. Wilson, 2 Moo.
C. C. 52.
In R. v. Goldsmith, 12 Cox, 479, upon an indictment,
under this section, an objection was taken that the indict-
ment did not set out what the particular false pretences were
as in the form above given. It was held that the objection,
not having been taken before plea, was cured by the verdict
of guilty, but the judges did not adjudicate upon the
merit of the objection itself; Bramwell, B., intimated,
that, for the future, it might be safer, in indictments of
this nature, to state specifically what the false pretences
were, as in indictments for obtaining under false pre-
tences ; see R. v. Hill, note r, 2 Russ. 554, where it was
held that an indictment, for so receiving goods obtained
by false pretences would be held bad on demurrer (or
motion to quash) if it did not allege what were the false
pretences.
At common law, receivers of stolen goods were only
guilty of a misdemeanor, even when the thief had been
convicted of felony.— Fost. 373. See Sees. 136, 137 of
Procedure Act.
448 LARCENY.
The goods must be so received as to divest the possession
out of the thief. — R. v. Wiley, 2 Den. 37. But a person
having a joint possession with the thief may be convicted
as a receiver. — R. v. Smith, Dears. 494. Manual posses-
sion is unnecessary, it is sufficient if the receiver has a
control over the goods. — R. v. Hobson, Dears. 400 ; R. v.
Smith, Dears. 494 ; see, ante, sect. 2, as to the words
" having in possession." The defendant may be convicted
of receiving, although he assisted in the theft. — R. v. Dyer.
2 East, 767 ; R. v. Craddock, 2 Den. 31 ; R. v. Hilton,
Bell, C. C. 20 ; R. v. Hughes, Bell, C. C 242. But not if
he actually stole the goods. — R. v. Perkins, 2 Den. 459.
Where the jury found that a wife received the goods without
the knowledge or control of her husband, and apart from
him, and that he afterwards adopted his wife's receipt, no
active receipt on his part being shown, it was held that the
conviction of the husband could not be sustained. — R. v.
Dring, Dears. & B. 329 ; but see R. v. Woodward, L. &
G. 122.
There must be a receiving of the thing stolen, or of part
of it; and where A. stole six notes of £100 each, and having
changed them into notes of £20 each, gave some of them
to B. : it was held that B. could not be convicted of receiv-
ing the said notes, for he did not receive the notes that
were stolen. — R. v. Walkley, 4 C. & P. 132. But where
the principal was charged with sheep-stealing, and the
accessory with receiving " twenty pounds of mutton, parcel
of the goods," it was held good. — R. v. Cowell, 2 East, P.
G. 617, 781. In the last case, the thing received is the
same, for part, as the thing stolen, though passed under a
new denomination, whilst in the first case nothing of the
article or articles stolen have been received, but only the
proceeds thereof. And says Greaves' note, 2 Russ. 561, it
LARCENY. 449
is conceived that no indictment could be framed for receiv-
ing the proceeds of stolen property. The section only
applies to receiving the chattel stolen, knowing that chattel
to have been stolen. In the case of gold or silver, if it
were melted after the stealing, an indictment for receiving
it might be supported, because it would still be the same
chattel, though altered by the melting ; but where a £100
note is changed for other notes, the identical chattel is gone,
and a person might as well be indicted for receiving the
money, for which a stolen horse was sold, as for receiving
the proceeds of a stolen note.
The receiving must be subsequent to the theft. If a
servant commit a larceny at the time the goods are receiv-
ed both servant and receiver are principals, but if the goods
are received subsequently to the act of larceny, it becomes
a case of principal and receiver. — R. v. Butteris, 6 C. <fc
P. 147 ; R. v. GrunceU, 9 C. <fc P. 365 ; R. v. Robert<. 3
Cox, 74.
The receiving need net be lucri causd ; if it is to conceal
the thief, it is sufficient. — R. v. Richardson, 6 C. & P. 365 ;
R. v. Davis, 6 C. & P. 177.
There must be some evidence that the goods were stolen
by another person. — R. v. Densley, 6 C. & P. 399 ; R. v.
Cordy, 2 Russ. 556.
A husband maybe convicted of receiving property which
his wife has voluntarily stolen, R. v. JPAthey, L. <fc C.
250, if he receive it, knowing it to have been >tolen.
The principal felon is a competent witness to prove the
larceny. — R. v. Haslam, 1 Leach, 418. But his confession
is not evidence against the receiver, R. v. Turner, 1 Moo-
C. C. 347, unless made in his presence and assented to by
him. — R. v. Cox, 1 F. & F. 90. If the principal has been
convicted, the conviction, although erroneous, is evidence
EE
450 LARCENY.
against the receiver until reversed. — R. v. Baldwin, R. &
R. 241.
To prove guilty knowledge, other instances of receiving
similar goods stolen from the same person may be given in
evidence, although they form the subject of other indict-
ments, or are antecedent to the receiving in question. — R.
v. Dunn. 1 Moo. C. C. 146 ; R. v. Davis, 6 C. & P. 177;
R. v. Nicholls, 1 F. & F. 51 ; R. v. Mansfield, C. & M.
140. But evidence cannot be given of the possession of
goods stolen from a different person. — R. v. Oddy, 2 Den.
264. Where the stolen goods are goods that have been
found, the jury must be satisfied that the prisoner knew
that the circumstances of the finding were such as to con-
stitute larceny. — R. v. Adams, IF, & F. 86. Belief that
the goods are stolen, without actual knowledge that they
are so, is sufficient to sustain a conviction. — R. v. White.
1 F. & F. 665. See sees. 203 and 204 of Procedure Act.
Eecent possession of stolen property is not generally
alone sufficient to support an indictment under this section,
— 2 Russ. 555. However, in JR. v. Langmead, L. & C.
427, the judges would not admit this as law, and maintain-
ed the conviction for receiving stolen goods, grounded on
the recent possession by the defendant of stolen property.
See also R. v. Deer, L. & C. 240.
A partner stole goods belonging to the firm, and render-
ed himself liable to be dealt with as a felon, under sec. 58
of our Larceny Act, and sold the same to the prisoner, who
knew of their having been stolen. Held, that the prisoner
could not be convicted on an indictment for feloniously
receiving, but might have been convicted as an accessory
after the fact on an indictment properly framed. — R. v.
Smith, 11 Cox, 511. It is observed, in Archbold, 436,
that in this last case, if the only thing that could have been
LARCENY. 451
proved against the prisoner was the receiving with a guilty
knowledge, he ought to have been indicted for the common
law misdemeanor of receiving stolen property. Sed qucere ?
An indictment charged S. with stealing eighteen shil-
lings and sixpence, and G. with receiving the same. The
facts were : S. was a barman at a refreshment bar, and G.
went up to the bar, called for refreshments and put down
a florin. S. served G. took up the florin, and took from his
employer's till some money, and gave G. as his change
eighteen shillings and six pence, which G. put in his pocket
and went away with it. On leaving the place he took some
silver from his pocket, and was counting it when he was
arrested. On entering the bar, signs of recognition took
place between S. and G., and G. was present when S. took
the money from the till. The jury convicted S. of stealing
and G. of receiving. Held, that this was evidence which
the judge ought to have left to the jury as reasonable evid-
ence upon which G. might have been convicted as a prin-
cipal in the second degree, and that therefore the convic-
tion for receiving could not be sustained. — R. v. Coggins,
12 Cox, 517.
On the trial of a prisoner on an indictment charging him
with receiving property which one M. had feloniously sto-
len, etc., the crime charged was proved, and evidence for the
defence was given to the effect that M. had been tried on a
charge of stealing the same property and acquitted. The
counsel for the crown then applied to amend the indict-
ment by striking out the allegation that M. had stolen the
property, and inserting the words "some evil disposed
person " which was allowed.
Held, 1. That the record of the previous acquittal of M.
formed no defence on the trial of this indictment, and was
improperly received in evidence.
452 LAKCENY.
2. That the amendment was improperly allowed. The
Queen v. Ferguson, 4 P. & B. (N. B.) 259.
Defendant sold to C, among other things, a horse power
and belt, part of his stock in the trade of a butcher in which
he also sold a half interest to C. The horse power had been
hired from one M. and at the time of the sale the term of
hiring had not expired. At its expiry M. demanded it and
C. claimed that he had purchased it from the defendant.
Defendant then employed a man to take it out of the pre-
mises where it was kept and deliver it to M., which he
did. Defendant was summarily tried before a police
magistrate and convicted of an offence against 32-33 V.,
c. 21, s. 100.
Held, that the conviction was bad, there being no offence
against that section.
Kemarks upon the improper use of criminal law in aid
of civil rights. — The Queen v. Young, 5 0. R. 400.
OFFENCES NOT OTHERWISE PROVIDED FOE.
85, Every one who, unlawfully and with intent to defraud, by
taking, by embezzling, by obtaining by false pretences, or in any
other manner whatsoever, appropriates to his own use or to the use
of any other person any property whatsoever, so as to deprive any
other person temporarily or absolutely of the advantage, use or enjoy-
ment of any beneficial interest in such property in law or in equity,
which such other person has therein, is guilty of a misdemeanor, and
liable to he punished as in the case of simple larceny ; and if the
value of such property exceeds two hundred dollars, the offender shall
be liable to fourteen years' imprisonment. — 32-33 V., c. 21, s. 110,
part.
The words " real or personal, in possession or in action,"
after the words " any property whatsoever, " have been
expunged from the 32-33 V., c. 21, s. 110.
This clause is not in the English Act.
The court would not inflict the additional punishment
LARCENY. 453
provided for in the last part of this clause, unless it be
alleged in the indictment and duly 'proved upon the
trial that the property stolen, embezzled or obtained by
false pretences is over two hundred dollars in value.
Sec. 85 of the Larceny Act applies only to a tem-
porary privation of the property. — R. v, Warner, 7 R.
L. 116.
An indictment under 32-33 V., c. 21, s. 110, for unlaw-
fully taking and appropriating property with intent to
defraud need not state the value of the property taken,
although, perhaps, a prisoner could not be tried, under the
second clause of the section, if the value was not stated.
On the trial of such an indictment it is a proper direc-
tion to tell the jury that they should acquit the prisoner if
they thought he bona fide believed he had a claim of right
in the property taken, — The Queen v. Horseman, 4 P. &
B. (X B.) 529.
By sec. 201 of the Procedure Act, it is enacted that
" If, on the trial of any person for larceny, for embezzlement, or
for obtaining any property by false pretences, the jury is of opinion
that such person is not guilty of the offence charged in the indictment,
but is of opinion that he is guilty of an offence against section eighty-
five of " The Larceny Act ," it may find him so guilty, and he shall be
liable to be punished as therein provided, as if he had been convicted
on an indictment under such section."
The offence created by this section 85 of the Larceny
Act is unknown in the English criminal law, and, it is
believed, was unknown throughout the whole of the
Dominion of Canada before the act of 1869.
In answer to our enquiries about it, Mr. E. J. Wick-
steed, of the Law Department of the House of Commons,
the author of the valuable "Table of the Statutes of the
Dominion of Canada," had the kindness to give us the
following information, inserted here with his permission :
454 LARCENY.
" C 21 of 32-33 V. (1869) or the act respecting
larceny, was prepared, as well as the other criminal acts,
by the law clerk. In the preparation, old materials were
used as much as possible, the provisions found in the laws
of the various Provinces of the Dominion, and the English
Acts being freely used ; but, in some instances, new sec-
tions were written to meet cases at that time unprovided
for. Section 110 of chap. 21, as to which you enquire,
whence taken, etc., was new, written by my father to
supply a deficiency. He informs me that it was suggested
to him by some work on English Criminal Law, and thinks
it was the book entitled « General View of the Criminal
Law of England,' by J. Fitz Stephen. This book, having
been removed from the Parliamentary library, I cannot
give you the writer's exact arguments, but the sense you
have in section 110 of chap. 21. The English Commis-
sioners on criminal law, in their fourth report to Her
Majesty, of 8th of March, 1839 (Vol. 1), remarking on the
law of England as to theft or larceny, observe, page 52 :
• It is further observable, that the intent essential to the
offence must extend to the fraudulent appropriation of the
whole property, and that the mere intent to deprive the
owner of the temporary possession only is not sufficient to
constitute the offence. For, although, under particular
circumstances, a fraudulent privation of possession may
justly be made penal, such an offence cannot, without
great inconvenience, be included with so general a predica-
ment as that of theft. A law designed for the protection
of the right of property would be far too general in its
operation, were it to be extended to mere temporary pri-
vations of possession. In practice, this would be to injure,
if not to destroy, the important boundary between the
crime of theft and a mere civil trespass.' And again, on
LARCENY. 455
page 56 : l And although the intent be not to commit a
collateral fraud, but to enjoy the temporary possession in
fraud of another's right of possession, the offence cannot
properly constitute a theft ; for this is an offence, as we
have already observed, against the right of property, as
distinguished from the mere right of possession, and the
law of Engiand does not, as the Eoman law did, notice the
furtum possessionis as constituting a branch of the law of
theft. The offence properly consists in the unlawful appro-
priation of that which belongs to another, which cannot be
where another has not the property, but only the right of
temporary possession. A law might no doubt be made to
comprehend mere wrongs to the temporary right of posses-
sion ; but the same principles of policy and convenience,
which occasion the distribution of offences into defined
classes, must also regulate the limits of each separate class
of offences, and we have already observed that to extend
the class of thefts to mere injuries to the possession, would
be to extend its boundaries too widely, and render the
limits between theft and a mere trespass indistinct.' But,
see Bishop, on Criminal Law, 2nd Edition, vol. 1, section
429 (section 579 of the fifth edition). 'Then we have a
very extensive influence exerted by the universal rule that
the law does not regard small things. We have seen that
in the application of this rule, the general, rather than the
particular, consequence of the act is to be regarded.
Therefore, although it is criminal to steal personal property
which is of some value, however small the value may be,
yet it is not so for a trespasser to take and carry away such
property, be the value great or small, with the intent of
appropriating to himself, not the property itself, but its
mere use, too small a thing, in respect of the general conse-
quence, for the criminal law, not for the civil, to notice-
456 LAJRCENY.
But this rule of small things can be accurately understood
only as we see it applied in the cases, for the decisions are
not harmonious with any general principle. There is no
reason, in principle, why many things deemed too small for
the law to notice, should not in fact be noticed by it ; for
instance, if a man converts to his own use, with a bad
motive, a valuable thing, which he takes, intending to
return it after he has served his end, there is no reason of
principle why he should not be as severely punished as he
who converts the entire property in a piece of paper worth
one mill.' It was upon reasoning similar to this of Mr.
Bishop, that my father submitted section 110 to Sir John
Macdonald, then Minister of Justice, who approved of it
and the act passed with it included "
Certainly, Bishop's observations are entitled to great
consideration, but it must be admitted, that, in practice,
the legislation contained in the clause in question, " des-
troys the important boundary between the crime of theft
and a mere civil trespass." — Crim. L. Comm. Report,
loc. cit. And is it very clear, as stated by Bishop, that
the rule of the English criminal law, that possession or
use of property is not the subject of larceny, is based
on the maxim " de minimis non curat lex." And
the English Commissioners, in a footnote to page 56 of
their report, cited, ante, say : " It is worthy of remark,
that the necessity of abandoning this principle of the
Boman law has been felt in nations whose systems depend
more immediately upon that law than our own, inasmuch
as the doctrine of the furtum possessionis, as well as the
furtum usus, has no place in any of the modern German
codes."
Is the full extent of the Boman law, on the subject, to
be now considered as forming part of our law ? "Furtum
LARCEJiY. 457
autem Jit, non solum quum quis intercipiendi causd rem
alienam arnovet, sed generaliter quum quis alienam rem
invito domino contracted. Itaque, sive creditor pig nor e,
sive is apud quern res deposita est, ed re utatur ; sive is qui
rem utendam accepit, in alium usum earn transferat
quam cujus gratid ei data est, furtum committat ; veluti,
si quis argentum utendum acceperit quasi amicos ad
ccenam invitaturus, et id peregre secum tulerit, aut si
quis equum, gestandi causd commodatum sibi, longuis
aliquo duxerit. — Ins. lib. 4, tit. 1, par. 6.
Would the defendants in R. v. Philips, 2 East, P. C.
662 ; R. v. Hollmvay, 1 Den. 370 ; R. v. Poole, Dears.
&• B. 345 ; R. v. Kilham, 11 Cox, 561, have been con-
victed under such a clause ?
86. Every one who is convicted of an offence against this Act by
stealing, embezzling or obtaining by false pretences any property
whatsoever, the value of which is over two hundred dollars, is liable
to seven years' imprisonment, in addition to any punishment to which
he would otherwise be liable for such offence. — 32-33 V., c. 21, *. 110,
part.
The value of over two hundred dollars must be inserted
in the indictment.
87. Everv one who, without the consent of the owner thereof,
takes, holds, keeps in his possession, collects, conceals, receives,
appropriates, purchases, sells or causes or procures or assists to be
taken possession of, collected, concealed, received, appropriated,
purchased or sold, any timber, mast, spar, saw-log or other description
of lumber which \a found adrift in any river, stream or lake, or
cast ashore on the bauk or beach of any river, stream or lake, or
without the consent of the owner thereof, wholly or partially defaces
or adds, or causes or procures to be defaced or added, any mark or
number on any such timber, mast, spar, saw-log or other description
of lumber, or makes, or causes, or procures to be made any false or
counterfeit mark on any such timber, mast, spar, saw-log or other
description of lumber, — or refuses to deliver up to the proper owner
thereof, or to the person in charge thereof, on behalf of such owner, or
458 LARCENY.
authorized by such owner to receive the same, any such timber, mast,
spar, saw-log or other description of lumber, is guilty of a misdemeanor
and liable to be punished as in the case of simple larceny. — 38 V., c,
40, s. \,part.
See sec. 228 of Procedure Act, post, as to evidence on
trials for offences against the above clause, and sec. 54 as
to search warrants.
88. Every one who brings into Canada, or has in his possession
therein, any property stolen, embezzled, converted or obtained by
fraud or false pretences in any other country, in such manner that
the stealing, embezzling, converting or obtaining it in like manner in
Canada would, by the laws of Canada, be a felony or misdemeanor,
knowing it to have been so stolen, embezzled or converted, or unlaw-
fully obtained, is guilty of an offence of the same nature and punish-
able in like manner as if the stealing, embezzling, converting or
unlawfully obtaining such property had taken place in Canada. — 32-
33 F., c. 21, s. Ill, part
This clause is not in the English Act.
Under sect. 8, chap. 158, of the Eevised Statutes of New
Brunswick, it was held that, upon an indictment in New
Brunswick, for a larceny committed in Maine, the goods
stolen having been brought into New Brunswick, it was
necessary to prove that the taking was larceny, according
to the law of Maine. — Clark's Grim. L. 317. This clause
was as follows : When any person shall be feloniously hurt
or injured at any place out of this Province, and shall die
in this Province of such hurt or injury, or when any per-
son shall steal any property out of this Province and shall
bring the same within the Province, any such offence,
whether committed by any person as principal or accessory
before or after the fact, may be dealt with in the county in
which such death may happen, or such property shall be
brought. The words " in such manner that the stealing,
etc., would by the laws of Canada be a felony or misde-
meanor, p in the present Act, sect 88, ante, constitute a
wide difference from this New Brunswick Act, and the
LAKCENY. 459
case noticed by Mr. Clark would probably not now be
followed.
See special remarks under sec. 21 of Procedure Act
as to the power of parliament to pass the above clause.
89. Every one who corruptly takes any money or reward, directly
or indirectly, under pretence or upon account of helping any person
to any chattel, money, valuable security or other property whatsoever,
which, by any felony or misdemeanor, has been stolen, taken, obtained,
extorted, embezzled, converted or disposed of, as in this Act before
mentioned (unless he has used all due diligence to cause the offender
to be brought to trial for the same), is guilty of felony, and liable to
seven years' imprisonment.— 32-33 V., c 21, *. 115. 24-25 F., c. 96, *.
101, Imp.
As to the meaning of the words " valuable security " and
"property," see, ante, sect. 2.
Indictment. — The Jurors for Our Lady the Queen upon
their oath present that A. B. on feloniously, unlaw-
fully and corruptly did take and receive from one J. N.
certain money and reward, to wit, the sum of five pounds
of the monies of the said J. N. under pretence of helping
the said J. N. to certain goods and chattels of him the said
J. N. before then feloniously stolen, taken and carried
away, the said A. B. not having used all due diligence to
cause the person by whom the said goods and chattels
were so stolen, taken and carried away as aforesaid, to be
brought to trial for the same; against the form
—Archbold, 837.
It was held to be an offence within the repealed statute
to take money under pretence of helping a man to goods
stolen from him, though the prisoner had no acquaintance
with the felon, and did not pretend that he had, and though
he had no power to apprehend the felon, and though the
goods were never restored, and the prisoner had no power to
restore them. — E. v. Ledbitter, 1 Moo. C. C. 76. The section
460 LARCENY.
of the repealed statute, under which this case was
decided, was similar to the present section. — 2 Russ. 575.
If a person know the persons who have stolen any pro-
perty, and receive a sura of money to purchase such pro-
perty from the thieves, not meaning to bring them to justice,
he is within the statute, although the jury find that he did
not mean to screen the thieves, or to share the money with
them, and did not mean to assist the thieves in getting rid
of the property by procuring the prosecutrix to buy it. — R.
v. Pascoe, 1 Den. 456.
A person may be convicted of taking money on account
of helping a person to a stolen horse, though the money be
paid after the return of the horse. R. v. CDonnell, 7 Cox,
337. As to the meaning of the words " corruptly takes,"
see R. v. King, 1 Cox, 36.
90. Every one who publicly advertises a reward for the return of
any property whatsoever, which has been stolen or lost, and in such
advertisement uses any words purporting that no questions will be
asked, or makes use of any words in any public advertisement pur-
porting that a reward will be given or paid for any property which
has been stolen or lost, without seizing or making any inquiry after
the person producing such property, or promises or offers in any such
public advertisement to return to any pawnbroker or other person
who advanced money by way of loan on, or has bought any property
stolen or lost, the money so advanced or paid, or any other sum of
money for the return of such property, or prints or publishes any
such advertisement, shall incur a penalty of two hundred and fifty
dollars for every such offence, recoverable with costs by any person
who sues for the same in any court of competent jurisdiction ;
2. No action to recover any forfeiture under this section shall be
brought against the printer or publisher of a newspaper, defined as a
newspaper for the purposes of the acts, for the time being in force,
relating to the carriage of newspapers by post, except within six
months after the forfeiture is incurred. — 32-33 V., c. 21, *. 116. 35
V., c. 35, ss. 2 and 3. 24-25 V., c. 96, s. 102, Imp.
91. Every one who, being a seller or mortgagor of land, or of any
chattel, real or personal or chose in action, or the solicitor or agent
LARCENY. 461
of any such seller or mortgagor, and having been served with a
written demand of an abstract of title by or on behalf of the purchaser
or mortgagee l»efore the completion of the purchase or mortgage,
conceals any settlement, deed, will or other instrument, material to
the title, or any incumbrance, from such purchaser or mortgagee, or
falsifies any pedigree upon which the title dependp, with intent to
defraud and in order to induce him to accept the title offered or
produced to him, is guilty of a misdemeanor and liable to a fine or to
two years' imprisonment or to both ;
2. No prosecution for any such offence shall be commenced without
the consent of the Attorney General of the Province within which
the offence is committed, given after previous notice to the person
intended to be prosecuted of the application to the Attorney General
for leave to prosecute ;
3. Nothing in this section, and no proceeding, conviction or judg-
ment had or taken thereon, shall prevent, lessen or impeach any
remedy which any person aggrieved by any such offence would other-
wise have had.— 29 V. (Can.),c. 28, s. 20, part.
92. The three sections next following apply only to the Province
of Quebec.
93. Every one who, knowing the existence of any unregistered
prior sale, grant, mortgage, hypothec, privilege or incumbrance, of or
upon any real property, fraudulently makes any subsequent sale of
the same, or of any part thereof, is guilty of a misdemeanor, and liable
to a fine not exceeding two thousand dollars, and to one year's impris-
onment.— C. S. L. C, c. 37, * 113.
Conviction under this sect. — R. v. Patliser, 4 L. C. J.
277.
94. Every one who pretends to hypothecate any real property to
which he has no legal title, is guilty of a misdemeanor, and liable to
a fine not exceeding one hundred dollars and to one year's imprison-
ment, and the proof of the ownership of the real estate shall rest with
the person so pretending to hypothecate the same. — C. S. L- C, c.
37, s. 114.
95. Every person who, knowingly, wilfully, and maliciously
causes or procures to be seized and taken in execution, any lands and
tenements, or other real property, situate within any township in the
Province of Quebec, not being, at the time of such seizure, the bond
fide property of the person or pen-ons against whom, or whose estate,
the execution is issued, knowing the same not to be the property of
462 LARCENY.
the person or persons against whom the execution is issued, is guilty
of a misdemeanor, and liable to one year's imprisonment;
2. Nothing in this section, and no proceeding, conviction or judg-
ment had or taken thereunder, shall prevent, lessen or impeach any
remedy which any person aggrieved by any such offence would
otherwise have had. — C S. L. C, c. 46,5*. 1 and 2.
96. The following sections apply only to the Province of British
Columbia.
97. Every one who, in any proceeding to obtain the registration of
any title to land or otherwise, or in any transaction relating to land,
which is or is proposed to be put on the register, acting either as
principal or agent, knowingly and with intent to deceive, makes or
assists or joins in, or is privy to the making of any material false
statement or representation, or suppresses, conceals, assists or joins
in, or is privy to the suppression, withholding or concealing from any
judge or registrar, or any person employed by or assisting the regis-
trar, any material document, fact or matter of information, is guilty
of a misdemeanor, and liable to three years' imprisonment;
2. Nothing in this section, and no proceeding, conviction or judg-
ment had or taken thereon, shall prevent, lessen or impeach any
remedy which any person aggrieved by any such offence would
Otherwise have had ;
3. Nothing in this section shall entitle any person to refuse to make
a complete discovery by answer to any bill in equity, or to answer
any question or interrogatory in any civil proceeding in any court;
but no answer to any such bill, question or interrogatory shall be
admissible against any such person in evidence in any criminal
proceeding.— R. S. B. C, c. 143, ss. 81, 82, 83 and 85.
98. Every one who steals, or without the sanction of the Lieutenant
Governor of the Province, cuts, breaks, destroys, damages or removes
any image, bones, article or thing deposited in or near any Indian
grave, or induces or incites any other person so to do, or purchases
any such article or thing after the same has been so stolen, or cut or
broken, destroyed or damaged, knowing the same to have been so
acquired or dealt with, shall, on summary conviction, be liable, for a
first offence, to a penalty not exceeding one hundred dollars, or to
three months' imprisonment, and for a subsequent offence, to the same
penalty and to six months' imprisonment with hard labor;
2. In any proceeding under this section it shall be sufficient to
state that such grave, image, bones, article or thing, is the property
of the crown. — B. S. B. C, c. 69, ss. 2, 3 and 4.
FORGERY.
GENERAL REMARKS.
" To forge is metaphorically taken from the smith who
beateth upon his anvil, and forgeth what fashion and shape
he will ; the offence is called crimen falsi, and the offen-
der falsarius, and the Latin word, to forge, is falsare or
fabrieare." — Coke, 3rd Inst. 169.
" Forgery is the fraudulent making or alteration of a
writing, to the prejudice of another's right." — 4 Black-
stone, 247.
In Coogan's Case (1 Leach, 448), Buller, J., said fi it is
the making of a false instrument with intent to deceive,"
and Eyre, B., in Taylor's case, defined it to be "a false
signature made with intent to deceive." In the word
" deceive " must doubtless be intended to be included an
intent to " defraud "[?] — and so it was defined by Grose,
J., in delivering the opinion of the judges in the case of
Parkes and Brown, viz. : " the false making a note or other
instrument with intent to defraud." Again Eyre, B., in the
case of Jones and Palmer, defined it to be rt the false mak-
ing an instrument, which purports on the face of it to be
good and valid for the purposes for which it was created,
with a design to defraud any person or persons." — (1 Leack,
367.) 2 East, P. C. 853. And East himself, 2 P. C. 852,
says " forgery at common law denotes a false making, which
includes every alteration of or addition to a true instrument,
a making malo animo, of any written instrument for the
purpose of fraud and deceit."
" Forgery is the false making of an instrument with
intent to prejudice any public or private right." — 3rd Rep.
dim. Law Coram. IQih June, 1847, p. 34.
464 FORGERY.
" Forgery is the fraudulent making of a false writing,
which, if genuine, would be apparently of some legal effi-
cacy."— Bishop, 2 Or. L. 523.
" The characteristic of the crime of forgery is the false
making of some written or other instrument for the pur-
pose of obtaining credit by deception. The relation this
offence bears to the general system may be thus briefly
established. In most affairs of importance, the intentions,
assurances, or directions, of men are notified and authenti-
cated by means of written instruments. Upon the authen-
ticity of such instruments the security of many civil rights,
especially the right of property, frequently depends ; it is,
therefore, of the highest importance to society to exclude
the numerous frauds and injuries which may obviously be
perpetrated by procuring a false and counterfeited written
instrument, to be taken and acted on as genuine. In refe-
rence to frauds of this description, it is by no means essen-
tial that punishment should be confined to cases of actually
accomplished fraud ; the very act of falsely making and
constructing such an instrument with the intention to
defraud is sufficient, according to the acknowledged prin-
ciples of criminal jurisprudence, to constitute a crime, —
being in itself part of the endeavour to defraud, and the
existence of the criminal intent is clearly manifested by an
act done in furtherance and in part execution of that inten-
tion. The limits of the offence are immediately deducible
from the general principle already adverted to. As regards
the subject matter, the offence extends to every writing
used for the purpose of authentication
The crime is not confined to the falsification of
mere writings ; it plainly extends to seals, stamps, and all
other visible marks of distinction by which the truth of any
fact is authenticated, or the quality or genuineness of any
FORGERY. 465
article is warranted ; and, consequently, where a party may
be deceived and defrauded, from having been by false signs
induced to give credit where none was due. With respect
to the false making of any such instrument, the offence
extends to every instance where the instrument is, under
the circumstances, so constructed as to induce a party to
give credit to it as genuine and authentic in a point where
it is false and deceptive. And in this respect, a forged in-
strument differs from one which is merely false and untrue
in stating facts which are false. "Where the instrument is
forged, as where a certificate purporting to be signed by an
authorized officer was not, in truth, signed by him, a party
to whom it is shown is deceived in being induced to sup-
pose that the fact certified is accredited by the officer whose
certificate it purports to be, and he is deceived in that res-
pect, whether the fact certified be true or false. If, on the
other hand, such a certificate be in truth signed by the
officer whose name it bears, the instrument is not forged
although the fact certified be falsely certified, for here the
party receiving the certificate is deceived, not by being
falsely induced to believe that the officer had accredited
the instrument by his signature, but from the officer having
falsely certified the fact. The instrument may, therefore,
be forged, although the fact authenticated be true. The in-
strument may be genuine, although the fact stated be false.
Where money or other property is obtained by an instru-
ment of the latter description, that is, where it is false
merely, as containing a false statement or representation,
the offence belongs to the class of obtaining money or other
property by false pretences." — 5th Rep. Crim. L. Comm.
22 nd of April, 1840.
" Consistently with the principles which govern the
offence of forgery, an instrument may be falsely made,
FF
466 FORGERY.
although it be signed or executed by the party by whom it
purports to be signed or executed. This happens where a
party is fraudulently induced to execute a will, a material
alteration having been made, without his knowledge, in the
writing ; for, in such a case, although the signature be
genuine, the instrument is false, because it does not truly
indicate the testator's intentions, and it is the forgery of
him who so fraudulently caused such will to be signed}
for he made it to be the false instrument which it really
is." — Cr. L. Comm. Rep. loc. cit.
This passage of the Criminal Law Commissioners seems
to be based on a very old case, cited in Noy's Reports, 101,
Combe's Case ; but in a more recent case, R. v. Collins, 2
M. and Rob, 461, it was held that, fraudulently to induce
a person to execute an instrument, on a misrepresentation
of its contents, is not a forgery ; and, in a case of R. v.
Chadwick, 2 M. and Rob. 545, that to procure the signa-
ture of a person to a document, the contents of which have
been altered without his knowledge, is not a forgery.
The report (loc. cit.) of the criminal law Commissioners
continues as follows : " Upon similar grounds, an offender
may be guilty of a false making of an instrument, although
he sign or execute it in his own name, in case it be false
in any material part, and calculated to induce another to
give credit to it as genuine and authentic where it is false
and deceptive. This happens where one, having conveyed
land, afterwards, for the purpose of fraud, executes an in-
strument, purporting to be a prior conveyance of the same
land ; here again, the instrument is designed to obtain cre-
dit by deception, as purporting to have been made at a
time earlier than the true time of its execution.'' — 5th
Report, loc. sit.
This doctrine was approved of in a case, in England, of R.
FORGERY. 467
v. Ritson, 11 Cox, 352, and it was there held, upon a case
reserved, that a man may be guilty of forgery by making
a false deed in his own name. Kelly, C. B. , delivering
the judgment of the Court, said : " I certainly entertained
some doubt at one time upon this case, because most of
the authorities are of an ancient date, and long before the
passing of the statutes of 11 Geo. 4 and 1 Will. 4, and
24-25 V. However, looking at the ancient authorities and
the text-books of the highest repute, such as Com. Dig.,
Bacon' 's Abr., 3 Co. Inst., and Foster's C. L. 117, they
are all uniformly to the effect, not that every instrument
containing a false statement is a forgery, but that every
instrument which is false in a material part, and which
purports to be that which it is not, or to be executed by a
person who is not the real person, or which purports to be
dated on a day which is not the real day, whereby a false
operation is given to it, is forgery."
" Forgery, at common law, is an offence in falsely and
fraudulently making and altering any matter of record,
of any other authentic matter of a public nature, as a
parish register or any deed or will, and punishable by
fine and imprisonment. But the mischiefs of this kind
increasing, it was found necessary to guard against them
by more sanguinary laws. Hence we have several acts
of Parliament declaring what offences amount to forgery,
and which inflict severer punishment than there were at
the common law." — Bacon's Abr. Vol. 3, 277. Cur-
wood, 1 Hav:kins, 263, is of opinion that this last
definition is wholly inapplicable to the crime of forgery
at common law, as, even- at common law, it was forgery
to make false " private " writings.
" The notion of forgery does not seem so much to con-
sist in the counterfeiting a man's hand and seal, which
468 FORGERY.
may often be done innocently, but in the endeavouring
to give an appearance of truth to a mere deceit and fal-
sity, and either to impose that upon the world as the
solemn act of another, which he is no way privy to, or
at least to make a man's own act appear to have been
done at a time when it was not done, and by force of
such a falsity to give it an operation, which in truth and
justice it ought not to have." — 1 Hawkins, 264.
The definitions containing only the words " with intent
to defraud " without the words " with intent to deceive "
seem defective. In fact, there are many acts held
to be forgery, where no intent to defraud, as this
expression is commonly understood, exists in the mind
of the person committing the act ; as, for instance, if
the man, forging a note, means to take it up, and even
has taken it up, so as not to defraud any one, this is
clearly forgery, if he issued it, and got money or credit,
or anything upon it. — R. v. Hill, 2 Moo. C. C. 30 ; R. v.
Oeach, 9 C. and P. 499 ; or forging a bill payable to the
prisoner's own order, and uttering it without indorsement,
jR. v. Birkett, R. and R. 86 ; or if one, while knowingly
passing a forged bank note, agrees to receive it again
should it prove not to be genuine, or if a creditor
executes a forgery of the debtor's name, to get from the
proceeds payment of a sum of money due him, R. v.
Wilson, 1 Den. 284 ; or if a party forges a deposition
to be used in court, stating merely what is true, to enforce
a just claim. All these acts are forgery ; yet where is the
intent to defraud, in these cases ? It may be said that the
law infers it. But why make the law infer the existence
of what does not exist ? Why not say that " forgery is the
false making of an instrument with intent to defraud or
deceive." The word " deceive " would cover all the cases
FORGERY. 469
above cited ; in each of these cases, the intent of the forger
is that the instrument forged should be used as good,
should be taken and received as signed and made, by the
person whose name is forged, in consequence, to deceive
quoad hoc, and for this, though he did not intend to
defraud, though no one could possibly be defrauded by
his act, he is in law guilty of forgery. See 2 Riiss. 774.
It is true that the Court of Crown cases reserved, in
England, held in R. v. Hodgson, Dears. & B. 3, that, upon
an indictment for forgery at common law, it is necessary
to prove, not only an intent to defraud, but also an intent
to defraud a particular person, though, when this case was
decided, the statute, in England (14-15 V., c. 100, s. 8,)
enacted that it was not necessary in indictments for forgery
to allege an intent to defraud any particular person. S.
114 of our Procedure Act. In this, Hodgson's Case, the
prisoner had forged and uttered a diploma of the college of
surgeons; the jury found that the prisoner forged the
document with the general intent to induce the belief that
it was genuine, and that he was a member of the college,
and that he showed it to certain persons with intent to
induce such belief in them ; but that he had no intent, in
forging or uttering it, to commit any particular fraud or
specific wrong to any individual
Though the offence charged in this case was under
the common law, it must be remembered that s. 8, of 14-
15 V., c. 100, applied to indictments under the common
law as well as to indictments under the statutes, as now
also do sect. 44 of the English Forgery Act and sect. 114
of our Procedure Act.
Greaves remarks on the decision in this case : —
" As the clause of which this is a re-enactment (44
470 FORGERY.
of the English Act, was considered in jR. v. Hodgson, and
as that case appears to me to have been erroneously decided,
it may be right to notice it here. The prisoner was indicted
at common law for forging and uttering a diploma of the
college of surgeons, and the indictment was in the common
form. The college of surgeons has no power of conferring
any degree or qualification, but before admitting persons to
its membership, it examines them as to their surgical know-
ledge, and, if satisfied therewith, admits them, and issues a
document called a diploma, which states the membership.
The prisoner had forged one of these diplomas. He
procured one actually issued by the college of surgeons,
erased the name of the person mentioned in it, and
substituted his own. He hung it up in his sitting room,
and, on being asked by two medical practitioners whether
he was qualified, he said he was, and produced this
document to prove his assertion. When a candidate for
an appointment as vaccinating officer, he stated he had
his qualification, and would show it, if the clerk of the
guardians, who were to appoint to the office, would go to
his gig; he did not, however, then produce or show it.
The prisoner was found guilty ; the fact to be taken to
be, that he forged the document with the general intent to
induce a belief that it was genuine, and that he was a
member of the college of surgeons, and that he showed it
to two persons with the particular intent to induce such
belief in these two persons ; but that he had no intent in
forging or in altering, to commit any particular fraud, or
any specific wrong to any individual. And, upon a case
reserved, it was held that the 14-15 V., c. 100, s. 8, altered
the form of pleading only, and did not alter the character
of the offence charged, and that the law as to that is the
FORGERY. 471
game as if the statute had not been passed ; and that, in
order to make out the offence of forgery at common law,
there must have been at the time the instrument was
forged, an intention to defraud some particular person.
Now, this judgment is clearly erroneous. The 14-15 V.,
c. 100, s. 8, does, in express terms, alter the law as well as
the form of indictment, for it expressly enacts, that "on
the trial of any of the offence3 in this section mentioned
(forging, uttering, disposing of or putting off any instru-
ment u'hatsoever) it shall not be necessary to prove that
the defendant did the act charged with an intent to
defraud.'' The judgment, therefore, and the clause in the
act are directly in contradiction to each other, and, conse-
quently, the former cannot be right. The clause was
introduced advisedly for the very purpose of altering the
law. See my note to Lord Campbell's Acts, page 13. It
is a fallacy to suppose that there must have been an intent
to defraud any particular person at the time of forging the
document. In Tailock v. Harris, 3 T. R. 176, that great
lawyer, Shepherd, said in argument, ■ it is no answer to a
charge of forgery to say that there was no special intent to
defraud any particular person, because general intent
to defraud is sufficient to constitute the crime ;" and this
position was not denied by that great lawyer, Wood, who
argued on the other side, and was apparently adopted by
the court. It is cited in 1 Leach, 216, note a ; 3 Chitty,
Or. L. 1036, and, as far as we are aware, was never
doubted before this case. Indeed, in R. v. Tylney, 1 Den.
319, it seems to have been assumed on all hands to be the
law. There the prisoners forged a will, but there was no
evidence to show that any one existed who could have
been defrauded by it, and the judges were equally divided
whether a count for forgery with intent to defraud some
472 FORGERY,
person unknown, could, under such circumstances, be
supported. It is obvious that this assumed that, if there
had been evidence that there was any one who might have
been defrauded, though there was no evidence that the
prisoners even knew of the existence of any such person,
the offence would have been forgery. Indeed it would be
very startling to suppose that a man who forged a will,
intending to defraud the next of kin, whoever they might
happen to be, was not guilty of forgery because he had
only that general intent.
The point is too obvious to have escaped that able crim-
inal lawyer, Mr. Prendergast, and, as he did not take it,
he clearly thought it wholly untenable, and so, also, must
the judges who heard the case. See also the observations
of Cresswell, J., in R. v. Marcus, 2 C. SK. 356. In M. v.
Nash, 2 Den. 493, Maule, J., expressed a very strong
opinion that it was not necessary in order to prove an
intent to defraud that there should be any person who
could be defrauded, and this opinion was not dissented
from by any of the other judges.
It has long been settled that making any instrument,
which is the subject of forgery, in the name of a non-exist-
ing person, is forgery, and in Wilks' Case, 2 East, P. C.
957, all the judges were of opinion that a bill of exchange
drawn in fictitious names was a forged bill. Now, every
one knows that, at the time when such documents are
forged, the forger has no intent to defraud any particu-
lar person, but only an intent to defraud any person
whom it may afterwards meet with, and induce to cash
the bill ; and no suggestion has ever been made in any of
these cases that that offence was not forgery. The ground
of the present judgment seems to have been that
formerly the particular person who was intended to be
FORGERY. 473
defrauded must have been named in the indictment ; no
doubt, it is a general rule of criminal pleading that the
names of persons should be stated, but this rule is subject
to the exception that, wherever the stating the name of
any person in an indictment is highly inconvenient or
impracticable, the name need not be stated, for lex ne-
minem cogit ad vana seu impossibilia. Therefore, the
names of inhabitants of counties, hundreds and parishes
need never be stated ; so, too, where there is a conspi-
racy to defraud tradesmen in general the names need
not be stated. So, where there is a conspiracy to raise
the funds, it is not necessary to state the names of the
persons who shall afterwards become purchasers of stock
" for the defendants could not, except by a spirit of
prophecy, divine who would be the purchasers on a
subsequent day," per Lord Ellenborough, C. J., R. v.
de Berenger, 3 M. and S. 68 ; which reason is equally
applicable to the case, where, at the time of forging an
instrument, there is no intent to defraud any particular
person. Indeed, it is now clearly settled that, where a
conspiracy is to defraud indefinite individuals, it is un-
necessary to name any individuals. — R. v. Peck, 9 A. &
E., 686 ; R. v. King, 7 Q. B. 782. This may be taken
to be a general rule of criminal pleading, and it has
long been applied to forgery. In R. v. Birch, 1 Leach,
79, the prisoners were convicted of forging a will, and
one count alleged the intent to be " to defraud the person
or persons who would by law be entitled to the messuages"
whereof the testator died seized. And it has been the
regular course in indictments for forging wills, at least
ever since that case, to insert counts with intent to
defraud the heir-at-law and the next of kin, generally. —
3 Chitty Cr. L. 1069. It is true that in general there have
474 FORGERY.
also been counts specifying the heir-at-law or the next of
kin by name. But in R. v. Tylney there was no such
count. No objection seems ever to have been taken
to any such general count. So, also, in any forgery
with intent to defraud the inhabitants of a county,
hundred or parish, the inhabitants may be generally des-
cribed. These instances clearly show that it is not neces-
sary in forgery any more than in other cases to
name individuals where there is either great inconve-
nience or inpractibility in doing so. A conviction for
conspiracy to negotiate a bill of exchange, the drawers
of which were a fictitious firm, and thereby fraudulently
to obtain goods from the King's subjects, although it did
not appear that any particular person to be defrauded
was contemplated at the time of the conspiracy, has been
held good ; R. v. Revey, 2 East, P. C. 858, note a; and
this case bears considerably on the present question. If
a person forged a bill of exchange with intent to defraud
any one whom he might afterwards induce to cash it,
and he uttered it to A. B., it cannot be doubted that he
would be guilty of uttering with intent to defraud A. B.,
and it would indeed be strange to hold that he was guilty
of uttering, but not of forging, the bill. No doubt the
offence of forgery consists in the intent to deceive or de-
fraud; but a general intent to defraud is just as criminal
as to defraud any particular individual. In each case,
there is a wrongful act done with a criminal intent,
which, according to R, v. Higgins, 2 East, 5, is suffi-
cient to constitute an indictable offence. In the course of
the argument, Erie, J., said : " Would it not have been
enough to allege an intent to deceive divers persons to
the jurors unknown, to wit, all the patients of his late
master?" This approaches very nearly to the correct
FORGERY. 475
view, viz., that it would have been enough before the
14-15 V., c. 100, s. 8, to have alleged and proved an
intent to deceive any persons who should afterwards
become his patients. Wightman, J., during the argument
said : " The question is, whom did he intend to deceive
when the forgery was committed ? " And Jervis, C. J.,
said : " The intent must not be a roving intent, but a
specific intent." Now, if these remarks are confined
to a count for forging, they are correct; though, in
Bolland'8 Case, 1 Leach, 83, the prisoner was executed
for forging an indorsement in the name of a non-existing
person, with intent to defraud a person whom he does
not even seem to have known when he forged the indorse-
ment.
But it cannot be doubted that a man may be guilty
of intending to defraud divers persons at different times
by the same instrument, as where he tries to utter a
forged note to several persons one after another, in which
case he may be convicted of uttering with intent to de-
fraud each of them. Thus much has been said, because
it is very important that the law on the subjects dis-
cussed in this note should not be left in uncertainty, and it
is much to be regretted that R. v. Hodgson was ever
decided as it was, as it may encourage ignorant pretenders
to fabricate diplomas, and thereby not only to defraud
the poor of their money, but to injure their health."
— Greaves, Cons. Acts, 303.
The case of Tatloch v. Harris, hereinbefore cited by
Greaves, is cited by almost all who have treated this ques-
tion; 2 Russ. 774; 2 East, P. C. 854, etc. In R. v.
Nash, 2 Den. 493, Maule, J., said: "The recorder seems
to have thought, that, in order to prove an intent to defraud
there should have been some person defrauded or who might
476 FORGEEY.
possibly have been defrauded. But I do not think that at
all necessary. A man may have an intent to defraud, and
yet there may not be any person who could be defrauded
by his act. Suppose a person with a good account at his
bankers, and a friend, with his knowledge, forges his name
to a cheque, either to try his credit, or to imitate his hand-
writing, there would be no intent to defraud, though there
would be parties who might be defrauded. But where
another person has no account at his bankers, but a man
supposes that he has, and on that supposition forges his
name, there would be an intent to defraud in that case
although no person could be defrauded."
And in R. v. Mazagora, R. <& R. 291, it has beenholden
that the jury ought to infer an intent to defraud the person
who would have to pay the instrument if it were genuine,
although from the manner of executing the forgery, or
from that person's ordinary caution, it would not be likely
to impose upon him ; and although the object was general
to defraud whoever might take the instrument, and the
intention of defrauding, in particular, the person who would
have to pay the instrument, if genuine, did not enter into
the prisoner's contemplation. See R. v. Crooke, 2 Str. 901 ;
R. v. Goate, 1 Ld. Raym. 737 ; R. v. Holden, R. & R.
154. And even, if the party to whom the forged instru-
ment is uttered believes that the defendant did not inteDd
to defraud him, and swears it, this will not repel the pre-
sumption of an intention to defraud. — R. v. Sheppard, R.
& R. 169. R. v. Trenfield, 1 F. & F. 43, is wretchedly
reported, and cannot be relied upon. — 2 Russ. 790, note by
Greaves. See also R. v. Crowther, 5 G. & P. 316, and R.
v. James, 7 C. & P. 853, on the question of the neces-
sary intent to defraud, in forgery ; and R. v. Boardman,
2 1J Rob, 147 ; R. v. Todd, 1 Cox, 57. Though the
FORGERY. 477
present statute, see s. 114 of the Procedure Act, has the
words " where it shall be necessary to allege an intent to
defraud," showing evidently that there are cases where
such an averment is not necessary, it has been held, in R.
v. Poivner, 12 Cox, 235, that, in all cases, an intent to
defraud must be alleged. This doctrine seems to have been
since repudiated by Martin, B., in R. v. Asplin, 12 Cox,
391.
It should be observed that the offence of forgery may be
complete, though there be no publication or uttering of
the forged instrument, for the very making with a frau-
dulent intention, and without lawful authority, of any
instrument which, at common law or by statute, is the sub-
ject of forgery, is of itself a sufficient completion of the
offence before publication, and though the publication of
the instrument be the medium by which the intent is
usually made manifest, yet it may be proved as plainly by
other evidence. — 2 East, P. C. 855. Thus in a case where
the note, which the prisoner was charged with having
forged was never published, but was found in his possession
at the time he was apprehended, the prisoner was found
guilty, and no one even thought of raising the objection
that the note had never been published. — R. v. Elliot, 1
Leach, 175. At the present time, most of the statutes
which relate to forgery make the publication of the forged
instrument, with knowledge of the fact, a substantive felony.
Not only the fabrication and false making of the whole
of a written instrument, but a fraudulent insertion, altera-
tion, or erasure, even of a letter, in any material part of
a true instrument, and even if it be afterwards executed by
another person, he not knowing of the deceit, or the frau-
dulent application of a true signature to a false instrument,
for which it was not intended or vice versd, are as much
478 FORGERY.
forgeries as if the whole instrument had been fabricated.
As by altering the date of a bill of exchange after accept-
ance, whereby the payment was accelerated. — 2 East, P. C.
855.
Even where a man, upon obtaining discount of a bill,
indorsed it in a fictitious name, when he might have obtain-
ed the money as readily by indorsing it in his own name,
it was holden to be a forgery. — R. v. Taft, 1 Leach, 172 ;
R. v. Taylor, 1 Leach, 214; R. v. Marshall. R. & R. 75 ;
R. v. Wiley, R. & R. 90 ; R. v. Francis, R. & R. 209.
It is a forgery for a person having authority to fill up a
blank acceptance or a cheque for a certain sum, to fill up
the bill or cheque for a larger sum. — R- v. Hart, 1 Moo.
C. G. 486 : and the circumstance of the prisoner, alleging a
claim on his master for the greater sum, as salary then due,
is immaterial, even if true. — R. v. Wilson, 1 Ben. 284.
In respect of the persons who might formerly be witnesses
in cases of forgery, it was an established point that a party
by whom the instrument purported to be made was not
admitted to prove it forged, if, in case of its being genuine,
he would have been liable to be sued upon it. — 2 Russ. 817.
But now, see sects. 214 and 218 of the Procedure Act.
A forgery must be of some document or writing ; there-
fore the putting an artist's name in the corner of a picture,
in order falsely to pass it off as an original picture by that
artist, is not a forgery. — R. v. Close, Dears & B. 460 ;
though it may be a cheat at common law.
The false signature by a mark is forgery. — R. v. Dunn,
1 Leach, 57.
When the writing is invalid on its face, it cannot be the
subject of forgery, because it has no legal tendency to effect
a fraud. It is not indictable, for example, to forge a will
attested by a less number of witnesses than the law requires.
FORGERY. 479
— R. v. Wall, 2 Fast 953 ; R. v. Martin, 14 Cos, 375 ; R.
v. Harper, 14 Cax, 574 ; i?. v. Moffat, 1 Leach, 431.
But a man may be indicted for forging an instrument,
which, if genuine, could not be made available by reason
of some circumstance not appearing upon the face of the
instrument, but to be made out by extrinsic evidence. —
R. v. Mcintosh, 2 Leach, 883. So, a man may be indicted
for forging a deed, though not made in pursuance of the
provisions of particular statutes, requiring it to be in a
particular form. — R. v. Lyon, R. <£• R. 255.
And a man may be convicted of forging an unstamped
instrument, though such instrument can have no operation
in law. — R. v. Haivkeswood, 1 Leach, 257. This question,
a few years afterwards, again underwent considerable
discussion, and was ^decided the same way, though,
in the meantime, the law, with regard to the procuring
of bills and notes to be subsequently stamped, upon
which in R. v. Haivkeswood, the judges appear in some
degree to have relied, had been repealed. The prisoner
was indicted for knowingly uttering a forged promissory
note. Being convicted the case was argued before the
judges, and for the prisoner it was urged that the 31
Geo. 3., c. 25, s. 19, which prohibits the stamps from
being afterwards affixed, distinguished the case from
R. v. Haivkeswood-. Though two or three of the judges
doubted at first the propriety of the latter case if the matter
were res Integra, yet they all agreed that, being an autho-
rity in point, they must be governed by it ; and they held
that the statute 31 Geo. 3 made no difference in the
question. Most of them maintained the principle in R. v.
Hav:keswood to be well founded, for the acts of Parlia-
ment referred to were mere revenue laws, meant to make
no alteration in the crime of forgery, but only to provide
480 FORGERY.
that the instrument should not be available for recovering
upon it in a court of justice, though it might be evidence
for a collateral purpose ; that it was not necessary to con-
stitute forgery, that the instrument should be available ;
that the stamp itself might be forged, and it would be a
strange defence to admit, in a court of justice, that because
the man had forged the stamp, he ought to be excused for
having forged the note itself, which would be setting up
one fraud in order to protect him from the punishment due
to another. — R. v. Morton, 2 East, P. C. 955. The same
principle was again recognized in R. v. Roberts, and R. v.
Davies, 2 East, P. C. 955, and in R. v. Teague, 2 East,
P. C. 979, where it was holden that supposing the instru-
ment forged to be such on the face of it as would be valid,
provided it had a proper stamp, the offence was complete.
As to the uttering. — These words, utter, uttering,
occur frequently in the law of forgery, counterfeiting and
the like ; meaning, substantially, to offer. If one offers
another a thing, as, for instance, a forged instrument or a
piece of counterfeit coin, intending it shall be received as
good, he utters it, whether the thing offered be accepted or
not. It is said that the offer need not go so far as a
tender.— R. v. Welch, 2 Den. 78 ; R. v. Ion., 2 Den. 475.
(See Greaves' remarks on this case, 2 Russ. 830.) But, to
constitute an uttering, there must be a complete attempt
to do the particular act the law forbids, though there may
be a complete conditional uttering, as well as any other,
which will be criminal. The words " pay/' u put off," in a
statute are not satisfied by a mere uttering or by a tender ;
there must be an acceptance also. — Bishop, Stat. Grimes,
306.
The Forgery Act now describes the offence of uttering
by the words " offer, utter, dispose of or put off," which
FORGERY. 481
include attempts to make use of a forged instrument, as
well as the cases where the defendant has actually suc-
ceeded in making use of it.
Showing a man an instrument, the uttering of which
would be criminal, though with an intent of raising a false
idea in him of the party's substance, is not an uttering.
Nor with the leaving it, afterwards, sealed up, with
the person to whom it was shown, under cover, that he
may take charge of it, as being too valuable to be carried
about, be an uttering. — R. v. Shukard, R. <£ R. 200. But
the showing of a forged receipt, to a person with whom the
defendant is claiming credit for it, was held to be an
offering or uttering, though the defendant refused to part
with the possession of it. — R. v. Radford, 1 Den. 59.
In R. v. Ion, 2 Den. 475. supra, cited by Bishop, the
rule laid down by the Court is, that a using of the forged
instrument in some way, in order to get money or credit
upon it or by means of it, is sufficient to constitute the
offence described in the statute.
Giving a forged note to an innocent agent or an ac-
complice that he may pass it is a disposing of and putting
it away. — R. v. Giles, 1 Moo. C. C. 166. So, if a person
knowingly deliver a forged bank note to another, who
knowingly utters it accordingly, the prisoner who delivered
such note to be put off may be convicted of having disposed
of and put away the same. — R. v. Palmer, R. & R. 72.
On the charge of uttering, the guilty knowledge is a
material part of the evidence. Actus nonfacit remm, nisi
mens sit rea. If there is no guilty knowledge, if the per-
son who utters a forged instrument really thinks it gen-
uine, there is no mens rea with him ; he commits no
offence. Therefore, the. prosecutor must prove this guilty
knowledge by the defendant, to obtain a conviction.
GG
482 FORGERY.
This is not capable of direct proof. It is nearly in all
cases proved by evidence of facts, from which the jury may
presume it.— Archbold, 570. And by a laxity of the
general rules of evidence, which has long prevailed in the
English Courts, the proof of collateral facts is admitted to
prove the guilty knowledge of the defendant. Thus, on an
indictment for knowingly uttering a forged instrument,
or a counterfeit bank note, or counterfeit coin, proof of
the possession, or of the prior or subsequent utterance,
either to the prosecutor himself or to other persons, of
other false documents or notes, or bad money, though of
a different description, and though themselves the
subjects of separate indictments, is admissible as material
to the question of guilty knowledge or intent. — Taylor,
Evid., 1 vol., par. 322; R. v. Aston, 2 Russ. 841;
R. v. Lewis, 2 Russ. 841 ; R. v. Oddy, 2 Den. 264. But
in these cases, it is essential to prove distinctly that the
instruments offered in evidence of guilty knowledge were
themselves forged. — Taylor, loc. cit.
It seems also, that though the prosecutor may prove the
uttering of other forged notes by the prisoner, and his con-
duct at the time of uttering them, he cannot proceed to
show what the prisoner said or did at another time, with
respect to such uttering ; for these are collateral facts, too
remote for any reasonable presumption of guilt to be
founded upon them, and such as the prisoner cannot by
any possibility be prepared to contradict. — Taylor, loc.
c4t. ; R. v. Philippe, 1 Lewin, 105 ; R. v. Cooke, 8C.&P.
586. In Philipps' case, the judge said. "That the pro-
secutor could not give in evidence anything that was said
by the prisoner at a time collateral to a former uttering in
order to show that what he said at the time of such former
FOBGERY. 483
uttering was false, because the prisoner eould not be
prepared to answer or explain evidene3 of that description;
that the prisoner is called upon to answer all the circum-
stances of a case under consideration, but not the circum-
stances of a case which is not under consideration ; that the
prosecutor is at liberty to show other cases of the prisoner
having uttered forged notes, and likewise his conduct at
the time of uttering them ; but that what he said or didat
anotlier time collateral to such other titterings, could not
be given in evidence, as it was impossible that the prisoner
could be prepared to combat it." See R. v. Browns, 2 F.
& F. 559, and Paterson's, J., remarks therein on R. v. Cooke,
cited, ante, and R. v. Faroes 7 C .& P. 224. The rule, in
such cases, seems to be that you cannot bring collateral
evidence of a collateral fact* or that you cannot bring
evidence of a collateral circumstance of a collateral fact.
The prosecutor must also prove that the uttering was
accompanied by an intent to defraud. As to which, see
remarks, ante, on the necessity of this intent in forgery,
generally. Baron Alderson told the jury, in R. v. Hill, 2
Moo. C. C. 30, that if they were satisfied that the prisoner
uttered the bill as true, knowing at the time that it was
forged, and meaning that the person to whom he offered
it should believe it to be genuine, they were bound to
infer that he intended to defraud this person, and this
ruling was held right by all the judges. And in R. v.
Todd, 1 Cox, 57, Coleridge, J., after consulting Cresswell,
J., said : " If a person forge another person's name, and
utter any bill, note, or other instrument with such signa-
ture, knowing it not to be the signature of the person
whose signature he represents it to be, but intending it to
be taken to be such by the party to whom it is given, the
inference, as well in point of fact as of law, is strong
484 FOKGERY.
enough to establish the intent to defraud, and the party so
acting becomes responsible for the legal consequences of
his act, whatever may have been his motives. The natural,
as well as the legal consequence, is that this money is
obtained, for which the party obtaining it profess to give
but cannot give a discharge to the party given up the
money on the faith of it. Supposing a person in temporary
distress pats another's name to a bill, intending to take it
up when it becomes due, but cannot perform it, the con-
sequence is that he has put another under the legal liability
of his own act, supposing the signature to pass for genuine."
See R. v. Vaughan, 8 C. & P. 276 ; R. v. Cooke, 8C.<fc
P. 582; R. v. Geach, 9CJP. 499.
A consequence of the judgment for forgery was an inca-
pacity to be a witness until restored to competency by
the king's pardon. — 2 Euss. 844. But now by sect.
214 of the Procedure Act, it is enacted that " no per-
son offered as a witness shall, by reason of any alleged
incapacity from crime or interest, be excluded from giv-
ing evidence on the trial of any criminal case, or in any
proceeding relating or incidental to each case." And
sect. 215 of the same act enacts that every person shall
be admitted and be compellable to give evidence, in cri-
minal cases, notwithstanding that such person has been
previously convicted of a crime or offence.
Indictment. — (General form, under statute.) The
Jurors for Our Lady the Queen, upon their oath present,
and J. S. on feloniously did forge a certain (here
name the instrument) which said forged is as follows :
that is to say (here set out the instrument verbatim)
(see post sections 114, 131, 132 of the Procedure Act)
with intent thereby then to defraud ; against the form
of the statute in such case made and provided, and
FORGEEY. 485
against the peace of Our Lady the Queen, her crown and
dignity.
And the jurors aforesaid, upon their oath aforesaid, do
further present, that the said J. S., afterwards, to wit,
on the day and year aforesaid, feloniously did forge a cer-
tain other (sta'e the instrument forged by any name or
designation by ivhich it is usually known) with intent
thereby then to defraud ; against the form of the Statute
in such case made and provided, and against the peace
of Our Lady the Queen, her crown and dignity.
- And the jurors aforesaid, upon their oath aforesaid, do
further present, that the said J. S., afterwards, to wit,
on the day and year aforesaid, feloniously did offer, utter,
dispose of and put off a certain other forged.... which said
last mentioned forged is as follows : that is to say
(here set out the instrument verbatim) with intent thereby
then to defraud, he, the said J. S., at the time he so
uttered, offered, disposed of and put off the said last
mentioned forged as aforesaid, well knowing the
same to be forged ; against the form of the statute in such
case made and provided, and against the peace of Our
Lady the Queen, her crown and dignity.
And the jurors aforesaid, upon their oath aforesaid,
do further present, that the said J. S., afterwards, to wit,
on the day and year aforesaid, feloniously did offer,
utter, dispose of and put off a certain other forged (as in
the second count) with intent thereby then to defraud,
he, the said J. S., at the time he so uttered, offered, dis-
posed of and put off the said last mentioned forged
as aforesaid, well knowing the same to be forged ; against
the form of the statute in such case made and provided,
and against the peace of Our Lady the Queen, her crown
and dignity.
486 FORGERY.
This indictment is not intended as a general precedent
to serve in all cases of forgery ; because the form in each
particular case must depend upon the statute on which
the indictment is framed. But, with the assistance of
it, and upon an attentive consideration of the operative
words in the statute creating the offence, the pleader
can find no difficulty in framing an indictment in any
case. — Archbold, 559.
Indictment for forgery at common law. — The Jurors
for Our Lady the Queen upon their oath present, that
J. S., on unlawfully, knowingly and falsely did
forge and counterfeit a certain writing purporting to be
(describe the instrument) with intent thereby then to de-
fraud : to the evil example of all others in like Gase
offending, and against the peace of Our Lady the Queen,
her crown and dignity.
And the jurors aforesaid, upon their oath aforesaid,
do further present, that the said J. S., afterwards, to wit,
on the day and year aforesaid, unlawfully, falsely and
deceitfully did utter and publish as true a certain other
false, forged and counterfeited writing, purporting to be
(describe the instrument) with intent thereby then to
defraud, he the said J. S., at the same time he so uttered
and published the said last mentioned false, forged and
counterfeited writing as aforesaid, well knowing the
same to be false, forged and counterfeited, to the evil
example of all others in the like case offending and against
the peace of Our Lady the Queen, her crown and dignity.
— Archbold.
At common law, forgery is a misdemeanor, punishable
by fine or imprisonment, or both, at the discretion of the
court.
The court of quarter sessions has no jurisdiction in
FOBGEBY. 487
cases of forgery, 2 Euss 814, and never had: "why?"
said Lord Kenyon, " I know not, but having been
expressly so adjudged, I will not break through the rules
of law. — R. v. Higgins, 2 East 18. — See also R. v.
Rigby, 8 C. dt P. 770, and R. v. McDonald, 31 U. C.
Q. B. 337. See sees. 114, 130, 131 and 132 of Pro-
cedure Act as to indictments for forgery, and sec. 18
thereof as to venue.
A prisoner extradicted from the United States on a
charge of forgery can, upon an indictment for forgery, be
found guilty of a felonious uttering. — R, v. Paxton, 3 L,
C. L. J. 117.
Making false entries in a book does not constitute the
crime of forgery. Ex parte Lamirande, 10 L. C. J. 280.
See R. v. Blachstone, post, under sec 12, and ex parte
Eno, 10 Q. L. K 194.
Definition of the term forgery considered. In re Smith,
4 P. R. (Ont.) 215. R. v. Gould, 20 U. C. C. P. 154.
Where the prisoner was indicted for forging a note for
$500, having changed a note of which he was the maker
from S500 to $2,500. Held, a forgery of a n:te fot
$500, though the only fraud committed was on the
endorser. — R. v. McNevin, 2 R. L. 711.
H
CHAPTER 165.
AN ACT KESPECTING FOEGERY.
ER Majesty, by.and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
INTERPRETATION.
1. In this Act, unless the context otherwise requires, the expression
" Province of Canada" includes the late Province of Canada and the
late Provinces of Upper Canada and Lower Canada, also the Pro-
vinces of Nova Scotia, New Brunswick, Prince Edward Island and
British Columbia, as they respectively existed before they became
part of Canada, and also the several Provinces, Territories and Districts
now or hereafter forming part of Canada.
2. When thehaving any matter or tiling in the custody or possession
of any person is, in this Act, expressed to bean offence, if any person
has any such matter or thing in his personal custody and possession,
or knowingly and wilfully has any such matter or thing in the actual
custody and possession of any other person, or knowingly and wilfully
has any such matteror thing in any dwelling-house or other building,
lodging, apartment, field or other place, open or inclosed, whether
belonging to or occupied by himself or not, and whether such matter
or thing is so had for his own use, or for the use or benefit of another,
every such person shall be deemed and taken to have such matter or
thing in his custody or possession within the meaning of this Act.—
32-33 V., c. 19, s. 52. 24-25 V ., c. 98, s. 45, Imp.
The words "or knowingly and wilfully has any such
matter or thing in the actual custody of any other person "
remove the doubts mentioned in R. v. Rogers, 2 Moo.
C. C. 85. R. v. Qerrish, 2 M. & Rob. 219, and R. v.
Williams, C. & M. 259.
3. The wilful alteration, for any purpose of fraud or deceit, of any
document or thing written, printed or otherwise made capable of
being read, or of any document or thing the forging of which is made
punishable by this Act, shall be held to be a forging thereof. — 32-33
V., c. 19, s. 45, part.
Not in the English Act.
FORGERY. 489
An indictment under this clause should charge the
alteration to have been done " wilfully and for a purpose
of fraud," and in another count " wilfully and for the pur-
pose of deceit."
In consideration of law, every alteration of an instru-
ment amounts to a forgery of the whole, and an indictment
for forgery will be supported by proof of a fraudulent
alteration, though, in cases where a genuine instrument
has been altered, it is perhaps better to allege the alter-
ation in one count of the indictment. — 1 Starkie's Crim.
pi 99.
THE GREAT SEAL, ETC.
4. Every one who forges or counterfeits, or utters, knowing the
same to be forged or counterfeited, the Great Seal of the United
Kingdom, or the Great Seal of Canada, of any Province of Canada, or
of any one of Her Majesty's colonies or possessions, Her Majesty's
Privy Seal, any Privy Signet of Her Majesty, Her Majesty's Royal
sign manual, or any of Her Majesty's seals, appointed by the twenty-
fourth article of the union between England and Scotland, to be kept,
used and continued in Scotland, the Great Seal of Ireland, or the
Privy Seal of Ireland, or the Privy Seal or Seal at Arms of the
Governor General of Canada, or of the Lieutenant Governor of any
Province of Canada, or of any person who admiuistere or, at any
time, administered the Government of any Province of Canada, or of
the Governor or Lieutenant Governor of any one of Her Majesty's
colonies or possessions, or forges or counterfeits the stamp or impres-
sion of any of the seals aforesaid, or utters any documentor instrument
whatsoever, having thereon or affixed thereto the stamp or impression
of any such forged or counterfeited seal, knowing the same to be the
stamp or impression of such forged or counterfeited seal, or any
forged or counterfeited stamp or impression made or apparently
intended to resemble the stamp or impression of any of the seals
aforesaid, knowing the same to be forged or counterfeited, or forges,
or alters, or utters, knowing the same to be forged or altered, any
document or instrument having any of the said stamps or impressions
thereon, or affixed thereto, is guilty of fe!ony, and liable to impris-
onment for life.— 32-33 P., c. 19, s. 1. 24-25 F., c. 98, s. 1, Imp.
490 FORGERY.
5. Every one who forges or fraudulently alters any document
bearing or purporting to bear the signature of the Governor General
of Canada, or of any deputy of the Governor General, or of the
Lieutenant Governor of any Province of Canada, or of any person
who administers or, at any time, administered the Government of
any Province of Canada, or offers, utters, disposes of or puts oft* any
such forged or fraudulently altered document as aforesaid, knowing
the same to be so forged or altered, is guilty of felony, and liable to
imprisonment for life— 32-33 V., c. 19, s. 2.
LETTERS PATENT AND PUBLIC REGISTERS.
6. Every one who forges or alters, or in any way publishes, puts
off, or utters as true, knowing the same to be forged or altered, any
copy of letters patent, or of the enrolment or enregistration of letters
patent, or of any certificate thereof, made or given or purporting to be
made or given by virtue of any Act of Canada or of any Province of
Canada, is guilty of felony, and liable to seven years' imprisonment.
—32-33 V., c. 19, s. 3.
7. Every one who forges or counterfeits or alters any public
register or book appointed by law to be made or kept or any entry
therein, or wilfully certifies or utters any writing as and for a true
copy of such public register or book or of any entry therein, knowing
euch writing to be counterfeit or false, is guilty of felony, and liable
to fourteen years' imprisonment. — 32-33 V-, c 19, s. 4.
Upon the trial of an indictment for any offence under
these Sections, the jury may, if the evidence warrants it,
under s. 183 of the Procedure Act, convict the prisoner of
an attempt to commit the same.
Indictment — ...... .. under sec. 4 that A. B^
on the Great Seal of the United Kingdoo, falsely,
deceitfully and feloniously did forge and counterfeit,
against the form And the jurors aforesaid, upon
their oath aforesaid, do further present that the said A. B.
afterwards, to wit, on the day and year aforesaid, falsely,
deceitfully and feloniously did utter a certain other false,
forged and counterfeited Great Seal as aforesaid, then well
knowing the same to be false, forged and counterfeited
FORGERY. 491
against the form Add amnts stating the instru~
rnent to vjhich the counterfeit seal was appended, or
which had thereon or affixed thereto the stamp or impres-
sion of such counterfeit, seal, etc. — Arckbold, 571.
Before the recent statutes, this offence was treason. — 1
Hale, 183. See general remarks on forgery.
TRANSFER OF STOCK, ETC.
8. Every one who, with intent to defraud, forges or alters, or offers,
titters, disposes of or puts off, knowing the same to be forged or altered,
any transferof any share or interest of or in any stock, annuity or other
public fund whicli now is or hereafter may be transferable in any of the
books of the Dominion of Canada, or of any Province of Canada or of
any bank at which the same is transferable, or of or in the capital stock
of any body corporate, company or society, which now is or hereafter
may be established by charter, or by, under or by virtue of any Act
of Parliament of the United Kingdom or of Canada, or by any Act of
the Legislature of any Province of Canada, or forges or alters, or
offers, utters, disposes of or puts off, knowing the same to be forged
or altered, any power of attorney or other authority to transfer any
share or interest of or in any such stock, annuity, public fund or
capital stock, or any claim for a grant of land from the Crown i*
Canada, or for any script or other payment or allowance in lieu of
any such grant of land, or to receive any dividend or money payable
in respect of any euch share or interest, or demands or endeavors to
have any such share or interest transferred, or to receive any dividend
or money payable in respect thereof, or any such grant of land, or
script or payment or allowance in lieu thereof as aforesaid, by virtue
of any such forged or altered power of attorney or other authority,
knowing the same to be forged or altered, is guilty of felony, and
liable to imprisonment for life.— 32-33 V., c. 19, s- 5. 24-25 V., c. 98,
a. 2, Imp.
The words in italics are not in the English Act.
See general remarks on fcrgery.
Indictment for forging and uttering a transfer of
stock. — that A. B., on feleniously did
forge a transfer of a certain share and interest in certaia
stock and annuities, to wit which said stock and
492 FORGERY.
annuities were then transferable at the bank of
and which said transfer then purported to be made by one
J, N. with intent thereby then to defraud, against the form
of the statute in such case made and provided, and against
the peace of Our Lady the Queen, her crown and dignity.
(2nd Count.) — did offer, utter, dispose of, and
put off, a certain other forged transfer of a certain share
and interest of, and in certain other stock and annuities, to
wit which said last mentionned stock and annuities
were then transferable at the bank of ...., and which
said last mentionned transfer purported to be made by one
J. N., with intent thereby then to defraud, he the said
A. B., at the time he so uttered the said last mentioned
forged transfer of the said share and annuity, well knowing
the some to be forged, against the form — Archbold,
590.
Indictment for forging and uttering a power of
attorney to sell out stock. — that A. B., on
feloniously did forge a certain power of attorney to
transfer a certain share and interest in certain stock and
annuities which were then transferable at the bank of
, which said forged power of attorney is as follows,
that is to say (here set it out) with intent thereby then to
defraud, against the form (2nd Count.)
feloniously did offer, utter, dispose of and put off a certain
other forged power of attorney, purporting to be a power
of attorney to transfer a certain share and interest of the
said J. N. in certain stock and annuities which were then
transferable at the bank of to wit, with in-
tent thereby then to defraud, he the said A. B. then well
knowing the said last mentioned power of attorney to be
forged, against the form (3rd Count.) felo^-
niously did demand and endeavour to have a certain share
FORGERY. 493
and interest of the said J. X. in certain stock and an-
nuities, which were then transferable at the bank of
to wit, transfered, in the books of the said bank of
, by virtue of a certain other forged power of
attorney, purporting to be a power of attorney, to transfer
the said share and interest of the said J. N. in the said
stock and annuities so transferable as aforesaid, with intent
thereby then to defraud, he the said A. B., at the time he
so demanded and endeavoured to have the said share and
interest transferred as aforesaid, well knowing the said last
mentioned power of attorney to be forged, against the form
—Archbold, 590.
Upon the trial of any indictment for any offence under
this section, the jury may, if the evidence warrants it,
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same. — 2 Russ. 865.
9. Every one who, falsely and deceitfully, personates any owner of
any share, or interest of or in any stock, annuity or other public fund,
which now is or hereafter may be transferable in any of the books of
the Dominion of Canada, or of any Province of Canada, or of any bank
at which the same is transferable, or any owner of any share or inter-
est of or in the capital stock of any body corporate, company or
society which now is or hereafter may be established bv charter, or
by, under or by virtue of any Act of Parliament of the United King-
dom or of Canada, or by any Act of the Legislature of any Province
of Canada, or of any claim Jor a grant of land from the Crown in
Canada, or Jor any scrip or other payment or allowance in lieu of
such grant of land, or any owner of any dividend or money payable in
respect of any such share or interest as aforesaid, and thereby trans-
fers or endeavors to transfer any share or interest belonging to any
such owner, or thereby receives or endeavors to receive any money
due to any such owner, or to obtain any such grant of land, or such
scrip or allowance in lieu thereof as aforesaid, as if such offender were
the true and lawful owner, is guilty of felony, and liable to imprison-
ment for life.— 32-33 V., c. 19, s. 6. 24-25 V., c. 98, s. 3, Imp.
The words in italics are not in the English Act.
494 FORGERY.
Indictment. — feloniously did, falsely and deceit-
fully, personate one J. N., the said J. N. then being the
owner of a certain share and interest in certain stock and
annuities, which were then transferable at the bank of
to wit (state the amount and nature of the stock ;)
and that the the said A. B. thereby did then transfer the
said share and interest of the said J. N. in the said stock
annuities, as if he, the said A. B., were then the true and
lawful owner thereof, against the form — Archbold,
614.
Upon the trial of any indictment for any offence under
this section, the jury may, if the evidence warrants it, under
sect. 183 of the Procedure Act convict the prisoner of an
attempt to commit the same. — 2 Muss. 865.
10. Every one who forges any name, handwriting or signature, pur-
porting to be the name, handwriting or signature of a witness attesting
the execution of any power of attorney or other authority to transfer
any share or interest of or in any such stock, annuity, public fund or
capital .<tock,or grant of land or scrip or allowance in lieu thereof, as
in either of the two sections next preceding mentioned, or to receive
any dividend or money payable in respect of any such share or interest,,
or offers, utters, disposes of or puts off any such power of attorney or
other authority, with any such forged name, handwriting or signature
thereon, knowing the same to be forged, is guilty of felony, and liable
to seven years' imprisonment.— 32-33 V., c. 19, ». 7. 24-25 V.,c. 98, $.
4, Imp.
11. Every one who, with intent to defraud, wilfully makes any
false entry in, or wilfully alters any word or figure in any of the books
of account kept by the Government of Canada, or of any Province of
Canada, or of any bank at which any of the l>ooks of account of the
Government of Canada or of any Province of Canada are kept, in
which books the accounts of the owners of any stock, annuities or
other public funds, which now are or hereafter may be transferable in
such books, are entered and kept, or in any manner wilfully falsifies
any of the accounts of any of such owners in any of the said books, or
wilfully makes any transfer of any share or interest of or in any stock,
annuity or oiher public fund which now is or hereafter may be trans-
FORGERY, 495
ferable as aforesaid, in the name of any person not being the true and
lawful owner of such share or interest, is guilty of felony, and liable
to imprisonment for life.— 32-33 V., c. 19, s. 8. 24-25 V., c. 98, a. 5,
Imp.
12. Every one who, being a clerk, officer or servant of, or other
person employed or intrusted by the Government of Canada or of any
.Province of Canada, or being a clerk or officer or servant of, or other
person employed or intrusted by any bank in which any of such booka
and accounts as are mentioned in the next preceding section are kept,
knowingly and with intent tj defraud, makes out, or delivers any
dividend warrant, or warrant for payment of any annuity, interest or
money payable as aforesaid, for a greater or less amount than the
person on whose behalf such warrant is made out is entitled to, is
guilty of felony, and liable to seven years' imprisonment. — 32-33 V.,
c. 19, s. 9. 24-25 V., c. 98, *. 6, Imp.
Indictment under sec. 10. — feloniously did forge
a certain name, handwriting and signature, as and pur-
porting to be the name, handwriting and signature of one
as and purporting to be a witness attesting the
execution of a certain power of attorney to transfer a cer-
tain share and interest of one J. N. in certain stock and
annuities which were then transferable at the bank of
, to wit (here state the amount and nature of the
stock,) against the form
(2nd Count.) did utter, dispose of and put off a
certain other forged power of attorney to transfer a certain
share and interest of the said J. N. in certain stock and
annuities which were then transferable at the bank of
, to wit> with the name, handwriting and signature
of the said forged, on the said last mentioned
power of attorney, as an attesting witness to the execution
thereof, he the said (defendant,) at the time he so offered,
uttered, disposed of and put off the same, well knowing
the said name and handwriting, purporting to be the name
and handwriting of the said thereon, as attesting
496 FORGERY.
witness thereof as aforesaid, to be forged, against the form
— Archbold.
Indictment for making false entries of stock, under
sec. 11. — feloniously did wilfully alter certain
words and figures, that is to say (here set out the words
and figures, as they were before the alteration) in a certain
book of account kept by , in which said book the
accounts of the owners of certain stock, annuities and other
public funds, to wit, the (state the stock) which were
then transferable at were then kept and entered,
by (set out the alteration and the state of the account or
item when so altered) with intent thereby then to defraud ;
against the form — A rchbold.
Indictment for making a transfer of stock in the name
of a person not the owner, under sec. 11. — feloniously
did wilfully make a transfer of a certain share and interest
of and in certain stock and annuities, which were then
transferable at the bank of , to wit, the share and
interest of , in the (state the amount and
nature of the stock), in the name of one C. D., he the said
C. D. not being then the true and lawful owner of the said
share and interest of and in the said stock and annuities,
or any part thereof, with intent thereby then to defraud,
against the form — Archbold.
Indictment, under sec. 12 then being a clerk
of and employed and entrusted by the said
feloniously did knowingly make out and deliver to one J.
N. a certain dividend warrant for a greater amount than
the said J, N. was then entitled to, to wit, for the sum of
five hundred pounds ; whereas, in truth and in fact, the
said J. N. was then entitled to the sum of one hundred
pounds only ; with intent thereby then to defraud, against
the form — Archbold.
FORGERY. 497
Upon the trial of any indictment for any offence under
these sections, the jury may, if the evidence warrants it,
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same. — 2 Russ. 865.
Where a bank clerk made certain false entries in the
bank books under his control, for the purpose of enabling
him to obtain the money of the bank improperly.
Held, that he was not guilty of forgery. — The Queen v.
Blackstone, 4 Man. L. R. 296.
DEBENTURES, STOCK, EXCHEQUER BILLS, ETC.
13. Every one who, with intent to defraud, forge9 or alters, or offers,
utter-1, disposes of or puts off, knowing the same to be forged or altered,
any debenture or other security, issued under the authority of any
Act of the Parliament of Canada, or of the Legislature of any Province
of Canada, or any exchequer bill or exchequer bond, or any Dominion
or Provincial note, or any indorsement on or assignment of any such
debenture, exchequer bill or exchequer bond or other security, issued
under the authority of any Act of the Parliament of Canada, or of
the Legislature of any Province of Canada, or any coupon, receipt or
certificate for interest accruing thereon, or any scrip in lieu of land as
aforesaid, is guilty of felony, and liable to imprisonment for life. — 32-
33 V., c. 19, s. 10. 24-25 V., c. 98, s. 8, Imp.
14. Every one who, without lawful authority or excu«e, the proof
whereof shall lie on him, makes or causes or procures to be made, or
aids or assists in making, or knowingly has in his custody or pos-
session, any frame, mould or instrument, having therein any words,
letter-, figures, marks, lines or devices, peculiar to or appearing in the
substance of any paper provided or to be provided and used for any
such debentures, exchequer bills or exchequer bonds, Dominion notes
or Provincial notes or other securities as aforesaid, or any machinery
for working any threads into the substance of any such paper, or any
such thread, and intended to imitate such words, letters, figures,
marks, lines, threads or devices, — or any plate peculiarly employed
for printing such debentures, exchequer bills or exchequer bonds, or
such notes or other securities, or any die or seal peculiarly used for
preparing any such plate, or for sealing such debentures, exchequer
bills or exchequer bonds, notes or other securities, or any plate, die
or seal, intended to imitate any such plate, die or seal as afo.esaid, is
HH
498 FORGERY.
guilty of felony, and liable to seven years' imprisonment. — 32-33 V.f
c 19, s. 11. 24-25 V., c. 98, s. 9, Imp.
15. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, makes, or causes, or procures to be made,
or aids or assists in making any paper in the substance of which
appear any words, letters, figures, marks, lines, threads or other
devices peculiar to and appearing in the substance of any paper
provided or to be provided or used for such debentures, exchequer
bills or exchequer bonds, notes or other securities aforesaid, or anv
part of such words, letters, figures, marks, lines, threads or other
devices, and intended to imitate the same, or knowingly has in his
custodyor possession any paper whatsoever, in the substance whereof
appear any such words, letters, figures, marks, lines, threads or
devices as aforesaid, or any parts of such words, letters, figures,
marks, lines, threads or other devices, and intended to imitate the
same, or causes or assists in causing any such words, letters, figures,
marks, lines, threads or devices as aforesaid, or any part of such
words, letters, figures, marks, lines, threads and other devices, and
intended to imitate the same, to appear in the substance of any paper
whatsoever, or takes, or assists in taking an impression of any such
plate, die or seal, as in the next preceding section mentioned, is guilty
of felony, and liable to seven years' imprisonment. — 32-33 V., c. 19,
s. 12. 24-25 V., c. 98, s. 10, Imp.
16. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, purchases or receives, or knowingly has in
his custody or possession, any paper manufactured and provided by
or under the direction of the Government of Canada or of any Pro-
vince of Canada, for the purpose of being used as such debentures,
exchequer bills or exchequer bonds, notes or other securities as afore-
said, before such paper has been duly stamped, signed and issued
for public use, or any such plate, die or seal, as in the two sections
next preceding mentioned, is guilty of a misdemeanor, and liable to
imprisonment for any term less than two years. — 32-33 V.,c. 19, s .13.
24-25 V., c. 98, s. 11, Imp.
See, ante, sec. 2, as to what constitutes a criminal pos-
session under this act.
Sec. 183 of the Procedure Act applies to trials under
these sections. — 2 Russ. 939.
FORGERY. 499
STAMPS.
17. Every one who forges, counterfeits or imitate.", or procures to
be forced, counterfeited or imitated any stamp or stamped paper,
issued or authorized to be used by any Act of the Parliament of
Canada, or of the Legislature of any province of Canada, by
means whereof any duty thereby imposed may be paid, or any
part or portion of any such stamp, — or knowingly uses, offers, sells or
exposes for sale any such forged, counterfeited or imitated stamp, —
or engraves, cuts, sinks or makes any plate, die or other thing whereby
to make or imitate such stamp or any part or portion thereof, except
by permission of an officer or person who, being duly authorized in
that behalf by the Government of Canada or of any Province of Canada,
may lawfully grant such permission, — or has possession of any such
plate, die or thing, without such permission, or, without such permis-
sion, uses or has possession of any such plate, die or thing lawfully
engraved, cut or made, — or tears off or removes from any instrument,
on which a duty is payable, any stamp by which such duty has been
wholly or in part paid, or removes from any such stamp any writing
or mark indicating that it has been used for or towards the payment
of any such duty, is guilty of felony, and liable to twenty-one years'
imprisonment.— 32-33 V., c- 19, s. U. 32-33 V., c- 48, s. 8, and 33-
34 V., c. 98, Imp.
As to what constitutes a criminal possession under this
act — see, ante, sec. 2.
See sec. 125 of the Procedure Act, as to indictment.
The Post Office Act, c. 35, Kev. Statutes, provides for
the forgery of postage stamps, etc .
See R v. Collicott, E. & R 212, and R v. Field, 1
Leach, 383. — And see general remarks on forgery. The
words " with intent to defraud " are not necessary in the
indictment, since the statute does not contain them. — See
R v. Aspin, 12 Cox, 391.
It was held, in R v. Ogden, 6 C. & P. 631, under a
similar statute, that a fraudulent intent was not necessary,
but in a case of R v, Allday, 8 C. & P. 136, Lord
Abinger ruled the contrary : " The act of Parliament, he
said, does not say that an intent to deceive or defraud
500 FORGERY.
is essential to constitute this offence, but it is a serious
question whether a person doing this thing innocently,
and intending to pay the stamp duty, is liable to be
transported. I am of opinion, and I hope I shall not be
found to be wrong, that to constitute this offence, there
must be a guilty mind. It is a maxim older than the law
of England, that a man is not guilty unless his mind be
guilty."
Lord Abinger, in R. v. Page, 8 C. & P. 122, held,
upon the same principle, that giving counterfeit coin in
charity, knowing it to be such, is not criminal, though in
the statute there are no words with respect to defrauding.
But this is overruled, as stated by Baron Alderson in
R. v. Ion, 2 Den. 484 ; and Greaves well remarks (on R.
v. Page) : " As every person is taken to intend the
probable consequence of his act, and as the probable con-
sequence of giving a piece of bad money to a beggar is
that that beggar will pass it to some one else, and thereby
defraud that person, quaere, whether this case rests upon
satisfactory grounds ? In any case a party may not be
defrauded by taking base coin, as he may pass it again,
but still the probability is that he will be defrauded, and
that is sufficient." — 1 Russ. 126, note Z.
And are there not cases, where a party, receiving a
counterfeit coin or a false note, not only may not be
defrauded, but will certainly not be defrauded. As for
example, suppose that during an election any one buys
an elector's vote, and pays it with a forged bill, — is the
uttering of this bill, with guilty knowledge, not criminal ?
Yet, the whole bargain is a nullity ; the seller has no
right to sell ; the buyer has no right to buy ; if he buys,
and does not pay, the seller has no legal or equitable
claim against him, though he may have fulfilled his part
FORGEIIY. 501
of the bargain. If the buyer does not pay, he does not
defraud the seller ; he cannot defraud him, since he does
not owe him anything ; it, then, cannot be said that he
defrauds him in giving him, in payment, a forged note.
Why see in this a fraud, and no fraud in giving a counter-
feit note, in charity, to a beggar ? Nothing is due to this
beggar, and he is not defrauded of anything by receiving
this forged bill, nor is this elector, who has sold his vote,
defrauded of anything, since nothing was due to him ;
they are both deceived but not defrauded. In the gene-
ral remarks on forgery, ante, an opinion was expressed
that forgery would be better described as " a false making
with the intent to defraud or deceive" and such cases as
the above seem to demonstrate the necessity of a codifi-
cation of our criminal laws. And, when the statute
makes no mention of the intention, does it not make the
act prohibited a crime in itself, apart from the intention ?
Of course, it is a maxim of our law that "actus non facit
re urn nisi mens sit rea" or, as said in other words, by
Starkie, 1 Or. PL 177, that, "to render a party criminally
responsible, a vicious will must concur with a wrongful
act." " But," continues Starkie, " though it be universally
true, that a man cannot become a criminal unless his
mind be in fault, it is not so general a rule that the
guilty intention must be averred upon the face of the
indictment." And then, for example, does not the man
who forges a stamp, or, scienter, utters it, do wilfully an
unlawful act ? Does not the law say that this act, by
itself, is criminal ? Has Parliament not the right to
say : " The forging, false-making a stamp, or knowingly
uttering it, is a felony, by itself, whether the person who
does it means wrong, or whether he means right, or whe-
ther he means nothing at all?" And this is exactly
502 FORGERY.
what it has said with regard to stamps, the Great Seal,
records of the courts of justice, etc. It has said of these :
" they shall be sacred, inviolable : you shall not deface
them, imitate them, falsify, or alter them in any way or
manner whatsoever, and if you do, you will be a felon."
And to show that, as regards these documents, the intent
to defraud was not to be a material element of the offence,
it has expressly, in all the other clauses of the statute,
where it did require this intent to make the act criminal,
inserted the words " with intent to defraud," and left them
out in the clause concerning the said stamps, Great Seal,
court records, etc. And no one would be prepared to say,
that the maxim, " lafinjustifie les moyens,'' has found its
introduction into the English criminal law ; and that, for
instance, a clerk of a court of justice is not guilty of a
criminal act, if he alters a record, provided that the
alteration is done with a good intent, and to put the
record, as he thinks, it ought to be, and should, in fact, be.
Is it not better to say that, in such cases, the guilty
mind, the evil intent, the mens rea, consist in the wilful
disobedience to a positive law, in the rebellious infraction
of the enactments of the legislative authority ?
Against the preceding remarks, it must be noticed that
Bishop, 1 Cr. L. 345, and 2 Cr, L. 607, cites these two
cases, R. v. Allday, and R. v. Page, and apparently
approves of them ; but Baron Alderson's remarks on R. v.
Page, in R. v. Ion, do not appear to have been noticed
in Bishop's learned books. At the same time, it may
be mentioned that in his 1 Cr. Procedure, after remarking,
par. 521, that the adjudged law, on this question, seems
to be not quite consistent with the general doctrine,
and not quite clear and uniform in itself, this distinguished
author says, in a foot note to par. 522 : " Now, in this
FORGERY. 503
complication of things, where also practice has run on
without decision, and then decision has proceeded without
much reference to the principles adhering in the law, it
is not suprising that, on this question of alleging the
intent, legal results have been reached, not altogether
harmonious with one another, aud not uniformly correct
in principle. Still, as this is a practical question, the
practical good sense of the judges has prevented any
great inconvenience attending this condition of things."
See remarks by Greaves, on B. v. Hodgson, under
general remarks on forgery, ante, and s. 114 Procedure Act.
BANK NOTES.
18. Every one who, with intent to defraud, forges or alters, or
offers, utters, disposes of or puts orl, knowing the same to be forged or
altered, any note or bill of exchange of any body corporate, company
or person carrying on the business of bankers, commonly called a
bank note, a bank bill of exchange or bank post bill, or any indorse-
ment on or assignment of any bank note, bank bill of exchange or
bank post bill, is guilty of felony, and liable to imprisonment for life.
—32-33 V., c. 19, s. 15. 24-25 V., c. 93, s. 12, Imp.
Indictment. — feloniously did forge a certain
note of the bank of commonly called a bank note,
for the payment often dollars, with intent thereby then to
defraud, against the form
(2nd Count.) — And the jurors aforesaid, upon their oath
aforesaid, do further present, that the said J. S. afterwards,
to wit, on the day and year aforesaid, feloniously did
offer, utter, dispose of and put off a certain other forged
note of the bank of commonly called a bank-note,
for the payment of ten dollars with intent thereby then to
defraud, — he said J. S. at the time he so offered, uttered,
disposed of and put off the said last mentioned forged
note as aforesaid, then and there well knowing the same to
be forged, against the form — Archbold.
504 FORGERY.
It is unnecessary to set out the forged instrument : it is
sufficient to describe it by any name or designation by
which it is usually known, or by its purport. — Sections
130 and 131 of the Procedure Act.
An indictment need not state, in the counts for uttering,
to whom the note was disposed of. — JR. v. Holden, R. &
R. 154. The intent to defraud any particular person
need not be alleged or proved. Sect. 114 Procedure Act.
Under the counts for uttering, evidence may be given
that the defendant offered or tendered the note in payment,
or that he actually passed it, or otherwise disposed of it to
another person. Where it appeared that the defendant
sold a forged note to an agent employed by the bank to
procure it from him, the judges held this to be within the
act, although it was objected that the prisoner had been
solicited to commit the act proved against him, by the
bank themselves, by means of their agents. — R. v.
Holden, ubi supra. So where A. gave B. a forged note
to pass for him, and upon B.'s tendering it in payment of
some goods, it was stopped ; the majority of the judges
held, that A., by giving the note to B., was guilty of
disposing of and putting away the note, within the
meaning of the act. — R. v. Palmer, R. & R. 72 ; R. v.
Soares, R. & R. 25 ; R. v. Stewart, R. & R. 363 ; and R.
v. Giles, 1 Moo. G. G. 166, where it was held, that giving
a forged note to an innocent agent, or an accomplice, that
he may pass it, is a disposing of, and putting it away,
within the meaning of the statute.
See general remarks on forgery.
Upon the trial of any indictment for any offence against
this section, the jury may, if the evidence warrants
it, under sect. 183 of the Procedure Act, convict the
prisoner of an attempt to commit the same. — 2 Russ. 874.
FORGERY. 505
19. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, purchases or receives from any other person,
or has in his custody or possession any forged hank note, hank bill of
exchange or bank post bill, or blank bank note, blank bank bill of
exchange or blank bank post bill, knowing the same to be forged, is
guilty of felony, and liable to fourteen years' imprisonment. — 32-33 F.,
c. 19, *. 16. 24-25 F, c. 98, *. 13, Imp.
As to what constitutes a criminal possession under this
act, see sec. 2.
Indictment. — The Jurors for Our Lady the Queen
upon their oath present, that A. B. on feloniously
and without lawful authority or excuse, had in his custody
and possession five forged bank notes for the payment of
ten dollars each, the said A. B. then well knowing the said
several bank notes and each and every of them respec-
tively to be forged ; against the form of the statute in such
case made and provided, and against the peace of Our Lady
the Queen, her crown and dignity. — Archbold, 596 ; 2
Burn, 682.
In R. v. Rowley, R. & R. 110, it was held, that every
uttering included having in custody and possession, and,
by some of the judges, that, without actual possession, if
the notes had been put in any place under the prisoner's
control, and by his direction, it was a sufficient possession
within the statute. See now sect. 2, ante.
Upon the trial of any indictment for any offence under
this section, the jury may, if the evidence warrants it,
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same. — 2 Russ. 874.
Held, that the alteration of a §2 Dominion note to
one of the denomination of 320, such alteration consisting
in the addition of a cypher after the figure 2, wherever that
figure occurred in the margin of the note, was forgery, and
the prisoner was rightly convicted therefor. — The Queen v.
Bail, 7 0. R. 228.
See sec. 129, Procedure Act.
506 FORGERY.
MAKING PAPER AND ENGRAVING PLATES FOR BANK
NOTES, ETC.
20. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, makes or uses, or knowingly has in his
custody or possession any frame, mould or instrument for the making
of paper used for Dominion or Provincial notes, or for bank notes,
with any words used in such notes, or any part < f such words,
intended to resemble or pass for the same, visible in the substance
of the paper, or for the making of paper with curved or waving bar
lines, or with laying wire lines thereof, in a waving or curved shape,
or with any number, sum or amount, expressed in a word or words in
letters, visible in the substance of the paper, or with any device or
distinction peculiar to and appearing in the substance of the paper
used for such notes, respectively, — or makes, uses, sells, exposes for
sale, utters or disposes of, or knowingly has in his custody or pos-
session any paper whatsoever with any words used in such notes, or
any part of such words, intended to resemble and pass for the same
visible in the substance of the paper, or any paper with curved or
waving bar lines, or with the laying wire lines thereof in a waving or
curved shape, or with any number, sum or amount expressed in a
word or words in letters appearing visible in the substance of the
paper, or with any device or distinction peculiar to and appearing in
the substance of the paper used for any such notes, respectively, — or
by any art or contrivance, causes any such words or any part of such
words, intended to resemble and pass for the same, or any device or
distinction peculiar to and appearing in the substance of the paper
used for any such notes, respectively, to appear visible in the sub-
stance of any paper, or causes the numerical sum or amount of any
such note, in a word or words in letters to appear visible in the sub-
stance of the paper, whereon the same is written or printed, is guilty
of felony, and liable to fourteen years' imprisonment. — 32 33 V., c,
19, s. 17. 24-25 V., c 98, s. 14, Imp.
21. Nothing in the next preceding section contained shall prevent
any person from issuing any bill of exchange or promissory note,
having the amount thereof expressed in a numerical figure or figures
denoting the amount thereof in pounds or dollars, appearing visible
in the substance of the paper upon which the same is written or
printed, or shall prevent any person from making, using or selling
any paper having waving or curved lines, or any other devices in the
nature of water marks visible in the substance of the paper, not being
bar lines or laying wire lines, provided the same are not so contrived
FORGERY. 507
as to form the groundwork or texture of the paper, or to resemble the
waving or curved, laying wire lines or bar lines, or the water-marks of
the paper used for Dominion notes or Provincial notes or bank notes,
as aforesaid.— 32-33 F., c. 19, s. 18. 24-25 V., c 98, s. 15, Imp.
22. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, engraves or in anywise makes upon any
plate whatsoever, or upon any wood, stone or other material, any
promissory note or part of a promissory note, purporting to be a
Dominion or Provincial note, or bank note, or to be a blank Dominion
or Provincial note, or bank note, or to be a part of any Dominion or
Provincial note, or bank note, as aforesaid, as any name, word or
character resembling, or apparently intended to resemble, any sub-
scription to any such Dominion or Provincial note, or bank note, as
aforesaid, — or uses any such plate, wood, stone or other material, or
any other instrument or device for the making or printing of any such
note, or part of such note, — or knowingly has in his custody or pos-
session any such plate, wood, stone or other material, or any such
instrument or device, — or knowingly offers, utters, disposes of or puts
off, or has in his custody or possession any paper upon which any
blank Dominion or Provincial note, or bank note, or part of any such
note, or any name, word or character resembling, or apparently
intended to resemble, any such subscription, is made or printed, is
guilty of felony and liable to fourteen years' imprisonment. — 31 V.t
c. 46, s. 14. 32-33 F., c. 19, s. 19. 24-25 J'., c. 98, s. 16, Imp.
23. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, engraves or in anywise makes upon any
plate whatsoever, or upon any wood, stone or other material, any
word, number, figure, device, character or ornament, the impression
taken from which resembles, or is apparently intended to resemble
any part of a Dominion or Provincial note, or bank note, or uses or
knowingly has in his custody or possession any such plate, wood,
stone or other material, or any other instrument or device for the
impressing or making upon any paper or any other material, any
word, number, figure, character or ornament, which resembles, or is
apparently intended to resemble any part of any such note as afore-
said,— or knowingly offers, utters, disposes of or puts off, or has in
his custody or possession any paper or other material upon which
there is an impression of any such matter as aforesaid, is guilty of
felony, and liable to fourteen years' imprisonment. — 32-33 V., c. 19,
*. 20. 24-25 F, c. 98, s. 17, Imp.
508 FORGERY.
24. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, makes or uses any frame, mould or instru-
ment for the manufacture of paper, with the name or firm of any
bank or body corporate, company or person carrying on the business
of bankers, appearing visible in the substance of the paper, or know-
ingly has in his custody or possession any such frame, mould or
instrument, — or makes, uses, sells, or exposes for sale, utters or
disposes of, or knowingly has in his custody or possession any paper,
in the substance of which the name or firm of any such bank, body
corporate, company or person appears visible, — or, by any art or
contrivance causes the name or firm of any such bank, body corporate
company or other person to appear visible in the substance of the paper
upon which the same is written or printed, is guilty of felony, and
liable to fourteen years' imprisonment. — 32-33 V., c. 19, s. 21. 24-25
V., c 98, s. 18, Imp.
25. Every one who forges or alters, or offers, utters, disposes of
or puts off, knowing the same to be forged or altered, any bill of
exchange, promissory note, undertaking or order for payment of
money, in whatsoever language or languages the same is expressed, and
whether the same is or is not under seal, purporting to be the bill,
note, undertaking or order of any foreign prince or state, or of any
minister or officer in the service of any foreign prince or state, or of
any body corporate or body of the like nature, constituted or recog-
nized by any foreign prince or state, or of any person or company of
persons resident in any country not under the dominion of Her
Majesty, and every one who, without lawful authority or excuse, the
proof whereof shall lie on him, engraves, or in anywise makes upon
any plate whatsoever, or upon any wood, stone or other material, any
bill of exchange, promissory note, undertaking or order for payment
of money, or any part of any bill of exchange, promissory note, under-
taking or order for payment of money, in whatsoever language the
same is expressed, and whether the same is or is not, or is or is not
intended to be under seal, purporting to be the bill, note, undertaking
or order, or part of the bill, note, undertaking or order of any foreign
prince or state, or of any minister or officer in the service of any
foreign prince or state, or of any body corporate or body of the like
nature, constituted or recognized by any foreign prince or state, or of
any person or company of persons resident in any country not under
the Dominion of Her Majesty, or uses or knowingly has in his
custody or possession any plate, stone, wood or other material, upon
which any such foreign bill, note, undertaking or order, or any part
FORGERY. 509
thereof is engraved or made, — or knowingly offers, utters, disposes of
or puts off, or has in his custody or possession any paper upon which
any part of any such foreign bill, note, undertaking or order is made
or printed, is guilty of felony, and liable to fourteen years' imprison-
ment.—32-33 V., c. 19, s. 22. 24-25 V., c. 98, s. 19, Imp.
The first part of this section is not in the English Act.
As to what is a criminal possession — see, ante, sec. 2.
Upon the trial of any indictment for any offence under
these sections, the jury may, if the evidence warrants it,
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same. — 2 Bu&s. 874.
It was held in B. v. Brackenridge, 11 Cox 96, that it is
an offence, under sect. 16 of the Imperial Act (sect. 22 of
our act), feloniously, and without lawful excuse, to engrave
upon a plate in England a note of a bank in Scotland, or
in the colonies; but see 37 L. J. M. C. 88.
In B. v. Keith, Dears 486, a decision was given on
what is a part of a bank note, but Greaves, note a, 2 Buss.
874, questions the legality of the decision.
B. v. Wai'shaner, 1 Moo. C. 0. 466 ; B. v. Harris, and
B. v. Balls, 1 Moo. C. C. 470, are cases under a clause
similar to sect. 25, ante, as to foreign bills and notes.
In B. v. Hannon, 2 Moo. C. C. 77, the having, in Eng-
land, in possession, a plate upon which was engraved a
note of the Bank of Upper Canada, was declared to be
within the then existing statute.
In B. v. Binaldi, L. and C. 330, it was held, that the
taking of a u positive" impression of a note on glass by
means of the photographic process is a " making " of a note
within 24-25 V., c. 98., s. 19 (sect 25, ante, of our
statute) although the impression so taken is evanescent,
and although it cannot be printed or engraved from until it
has been converted into a " negative. " The report of this
case gives at full length a copy of the indictment therein.
510 FORGERY.
If several concur in employing another to make a for-
ged instrument, knowing its nature, they are all guilty of
the forgery. — R. v. Mazeau, 9 C. and P. 676.
See sees. 114, 131 and 132 of Procedure Act, as to
indictment, and sec. 55 as to search warrants.
DEEDS, WILLS, BILLS OF EXCHANGE, ETC.
26. Every one who, with intent to defraud, forges or alters, or
offers, utters, disposes of or puts off, knowing tlie same to be forged or
altered, any deed or any bond or writing obligatory, or any assignment
at law or in equity of any such bound or writing obligatory, or forges
any name, handwriting or signature purporting to be the name,
handwriting or signature of a witness attesting the execution of any
deed, bond or writing obligatory, or offers, utters, disposes of or puts
off any deed, bond or writing obligatory, having thereon any such
forged name, handwriting or signature, knowing the same to be
forged, is guilty of felony, and liable to imprisonment for life. — 32-33
V., c. 19, 8. 23. 24-25 V., c. 98, s. 20, Imp.
Indictment a certain bond and writing obligatory
feloniously did forge, with intent thereby then to defraud,
against the form
(2nd Count) that the said J. S. afterwards, to wit,
on the day and year aforesaid, feloniously did offer, utter,
dispose of and put off, a certain other forged bond and
writing obligatory, with intent thereby then to defraud,
he the said J. S. at the time he so offered, uttered, dispos-
ed of and put off the said last-mentioned forged bond and
writing obligatory as aforesaid, well knowing the same to
be forged, against the form — Archbold.
A power of attorney is a deed within the meaning of 2
Geo. 2, c. 25, and forging a deed is within the statute,
though there may have been subsequent directory provi-
sions by statute, that instruments for the purpose of such
forged deed shall be in a particular form, or shall comply
with certain requisites, and the forged deed is not in that
FORGERY. 511
form, or does not comply with those requisites. — R. v.
Lyon, R. & R. 255. And a power of attorney to transfer
government stock was holden to bt* a deed under the repeal-
ed statutes. — R. v. Fauntleroy, 1 Moo. C. C. 52 ; but the
forging of such a power of attorney is now provided for by
sect. 8, ante.
E. made an equitable deposit of title deeds with G. for
£750, and afterwards assigned all his property to B. for
the benefit of his creditors. E. and his assignee, B. then,
for an additional advance, conveyed to G. the freehold of
the property to which the deeds deposited related. After
this, the prisoner E. executed a deed of assignment to the
other prisoner of a large part of the land so conveyed to G.
for a long term of years ; but this deed was falsely ante-
dated before the conveyance by E. and B. to G., and upon
this deed, the prisoners resisted G.'s title to possession of
this part of the land. Held, that this deed so antedated for
the purpose of defrauding G. amounted to forgery, and that
a man may be guilty of forgery by making a false deed in
his own name. — R. v. Ritson, 11 Cox, 352.
Letters of orders issued by a bishop, certifying that so
and so has been admitted into the holy orders, is not a
deed within this section, and a forgery of such letters is
not within the statute, but a misdemeanor at common law.
— R. v. Morton, 12 Cox, 456.
Upon any indictment, for any offence under this section,
the jury may, if the evidence warrants it, under sect. 183
of the Procedure Act, convict the prisoner of an attempt
to commit the same.
27. Every one who, with intent to defraud, forges or alters, or
offers, utters, disposes of or puts off, knowing the same to he forged
or altered, any will, testament, codicil, or testamentary instrument,
is guilty of felony, and liable to imprisonment for life. — 32-33 F., c.
19, s. 2-L 24-25 F"., c. 98, s. 21, Imp.
512 FORGERY.
Indictment.— feloniously did forge a certain
will and testament purporting to be the last will and testa-
ment of one with intent thereby then to defraud,
against the form
(2nd Count) did offer, utter (asinthe last
precedent) — Archbold, 575.
The judges were equally divided upon the question
whether in the absence of the existence of some person
who could have been defrauded by the forged will, a count
for forging it with intent to defraud a person or persons
unknown could be supported, — R. v. Tylney, 1 Den. 319.
"Forgery may be committed by the false making of the
will of a living person ; or of a non-existing person. — R. v.
Murphy, 2 East, P. C. 949 ; R. v. Sterling, 1 Leach, 99 ;
R. v. Coogan, 1 Leach, 449 ; R. v. Avery, 8 C. & P. 596.
So, though it be signed by the wrong christian name of the
person whose will it purports to be. — R. v. Fitzgerald, 1
Leach, 20.
Upon the trial of any indictment for any offence under
this section, the jury may, if the evidence warrants it,
under sec. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same.
28. Every one who, with intent to defraud, forges or alters, or
offers, utters, disposes of or puts off, knowing the same to he forged
or altered, any bill of exchange, or any acceptance, indorsement or
assignment of any bill of exchange, or any promissory note for the
payment of money, or any indorsement on or assignment of any such
promissory note, is guilty of felony, and liable to imprisonment for
ife.— 32-33 V., c. 19 s. 25. 24-25 V., c. 98, s. 22, Imp.
Indictment. — a certain bill of exchange felo-
niously did forge, with intent thereby then to defraud;
against the form
(2nd Count) did offer, utter as form
under see. 23.
FORGERY, 513
If the acceptance be also forged, add counts for it, as
follows :
(3rd Count.) that the said J. S. afterwards, to
wit, on the day and year last aforesaid, having in his
custody and possession a certain other bill of exchange,
feloniously did forge on the said last mentioned bill of
exchange an acceptance of the said last mentioned bill of
exchange, which said forged acceptance is as follows, that
is to say : (set it out verbatim) with intent thereby then
to defraud, against the form
(\th Count.) that the said J. S., afterwards,
to wit, on the year and day last aforesaid, having in his
custody and possession a certain other bill of exchange,
on which said last mentioned bill of exchange was then
written a certain forged acceptance of the said last men-
tioned bill of exchange, which said forged acceptance of
the said last mentioned bill of exchange is as follows, that
is to say : (set it out verbatim) he, the said J. S., on the
day and year last aforesaid, feloniously did offer, utter,
dispose of and put off the said forged acceptance of the said
last mentioned bill of exchange, with intent thereby then
to defraud, he the said J. S. at the time he so offered,
uttered, disposed of and put off the said forged acceptance
of the said last mentioned bill of exchange well knowing
the said acceptance to be forged, against the form
If an indorsement be also forged, add counts for it as
follows :
(bth Count.) that the said J. S. afterwards,
to wit, on the day and year last aforesaid, having in his
custody and possession a certain other bill of exchange,
feloniously did forge on the back of the said last men-
tioned bill of exchange, a certain indorsement of the said
bill of exchange, which said forged indorsement is as
II
514 FORGERY.
follows, that is to say ; (set it out verbatim) with intent
thereby then to defraud, against the form
(6th Count) that the said J. S. afterwards, to wit,
on the day and year last aforesaid, having in his custody and
possession a certain other bill of exchange, on the back of
which said last mentioned bill of exchange was then writ-
ten a certain forged indorsement of the said last mentioned
bill of exchange, which said last mentioned forged indorse-
ment is as follows, that is to say : (set it out verbatim)
he, the said J. S. on the day and year last aforesaid, felo-
niously did offer, utter, dispose of, and put off the said last
mentioned forged indorsement of the said last mentioned
bill of exchange, with intent thereby then to defraud, — he,
the said J. S. at the time he so offered, uttered, disposed of
and put off' the said last mentioned forged indorsement
of the said last mentioned .bill of exchange, well knowing
the said indorsement to be forged, against the form
From the above precedent, an indictment may readily be
framed for forging and uttering a promissory note, merely
substituting for the words " bill of exchange " the words
" promissory note for the payment of money " and omit-
ting, of course, the counts as to the acceptance. —
Archbold.
A bill payable ten days after sight, purporting to have
been drawn upon the Commissioners of the Navy, by a lieu-
tenant, for the amount of certain pay due to him, has been
liolden to be a bill of exchange. — R. v. Chisholm, R. & R.
297. So a note promising to pay A. & B., " stewardesses "
of a certain benefit society, or their " successors," a certain
sum of money on demand, has been holden to be a promis-
sory note within the meaning of the Act. It is not neces-
sary that the note should be negotiable. — R. v. Box, R. & R.
300. An instrument drawn by A. on B., requiring him to
FORGERY. 515
pay to the administrators of C a certain sum, at a certain
time u without acceptance," is a bill of exchange. — R. v.
Kinnear, 2 M. <£ Rob. 117. So, though there be no per-
son named as drawee, the defendant may be indicted for
uttering a forged acceptance on a bill of exchange. — R. v.
Eawkes, 2 Moo. C. C. 60. For the act of putting the
acceptance is a sort of estoppel to say it was not a bill
of exchange, but, without acceptance, this instrument is
not a bill of exchange. — jR. v. Curry, 2 Moo. C. C. 218.
In R. v. Mopsey, 11 Cox, 143, the acceptance to what
purported to be a bill of exchange was forged, but at the time
it was so forged the document had not been signed by the
drawer, and it was held that, in consequence, the document
was not a bill of exchange. And a document in the ordi-
nary form of a bill of exchange, but requiring the drawee
to pay to his own order, and purporting to be indorsed by
the drawer, and accepted by the drawer, cannot, in an
indictment for forgery or uttering, be treated as a bill of
exchange. — R. v. Bartlett, 2 M. <k Rob. 362. But an
instrument payable to the order of A, and directed " At
Messrs. P. & Co., bankers," was held to be properly des-
cribed as a bill of exchange. — R. v. Smith, 2 Moo. C. C.
295. It is necessary that the promissory note should be
for the payment of money only to be within the statute.
In R. v. Howie, 11 Cox, 320, the prisoner had forged
a seaman's advance note. He was indicted for forging
or uttering a certain promissory note or order for the
payment of money. Held, that a seaman's advance note
was not a promissory note or order for the payment of
money, and that the indictment was therefore bad as the
advance note was conditional, and there must be no con-
dition in a promissory note or order for payment of money.
The adding of a false address to the name of the drawee
516 FORGERY.
of a bill, while the bill is in the course of completion, in
order to make the acceptance appear to be that of a differ-
ent existing person, is a forgery. — R. v. Blenkinsop, 1
Den. 276. See R. v. Mitchell, 1 Den. 282 A nursery-
man and seedsman got his foreman to accept two bills,
the acceptance having no addition, description or address,
and afterwards, without the acceptor's knowledge, he added
to the direction a false address, but no description, and
represented in one case that the acceptance was that of a
customer, and in the other case that it was that of a seeds-
man, there being in fact no such person at the supposed
false address : Held, that in the one case, the former, he
was not guilty of forgery of the acceptance, but that, in
the other case, he was. — R. v. Epps, 4 F. & F. 81. A bill
of exchange was made payable to A, B, C, D, or other
executrixes. The indictment charged that the prisoner for-
ged on the back of the bill a certain forged indorsement,
which indorsement was as follows (naming one of the
executrixes); Held, a forged indorsement, and indictment
sufficient. — R. v. Winterbottom, 1 Den. 41. Putting off
a bill of exchange of A, an existing person, as the bill of
exchange of A, a fictitious person, is a felonious uttering of
the bill of a fictitious drawer. — R. v. Nisbett, 6 Cox, 320.
If there are two persons of the same name, but of different
discriptions or additions, and one signs his name with the
description or addition of the other for the purpose of
fraud, it is forgery. — R. v. Webb, cited in Bay ley on Bills,
432.
Upon the trial of any indictment for any offence under
this section, the jury may, if the evidence warrants it, under
sect. 183 of the Procedure Act, convict the prisoner of an
attempt to commit the same.
There can be no conviction for forgery of an indorse-
FORGERY. 517
ment of a bill of exchange under the above section, if the
bill of exchange itself is not a complete instrument as
such. — R. v. Harper, 14 Cox, 574.
W. a bailiff had an execution against prisoner and H.
M. and to settle same it was arranged to give a note made
by A. M. and indorsed by A. D. M. A note was drawn up
payable to the order of A. D. M., and prisoner took it away
and brought it back with the name A. D. M. indorsed. It
was then signed by A. M. and given to the bailiff. The
indorsement was a forgery, and prisoner was indicted for
forging an indorsement on a promissory not, and convicted.
Held, following R. v. Butteruick, 2 M. & Rob. 196; R. v.
Mopsey, 11 Cox, 143; and R. v. Hunter, 7 Q. B. D. 78,
that the conviction could not be sustained on the indict-
ment as framed as the instrument, for want of the maker's
name at the time of the forgery, was not a promissory
note ; nor could it stand on the count for uttering as after
it was signed it was never in prisoner's possession. — R. v.
McFee, 13 0. R. 8.
An indictment for forgery of a promissory note must
allege that the promissory note was for the payment of
money. — Kelly v. R., 3 Stephens' Dig. (Quebec,) 222.
29. Every one who, with intent to defraud, forges or alters, or
offer?, utters, disposes of or puts off, knowing the same to be forged
or altered, any undertaking, warrant, order, authority or request for
the payment of money or for the delivery or transfer of any goods
or chattels, or of any note, bill or other security for the payment of
money, or for procuring or giving credit, or any indorsement on
or assignment of any such undertaking, warrant, order, authority or
request, or any accountable receipt, acquittance or receipt for money
or for goods, or for any note, bill or other security for the payment of
money, or any indorsement on or assignment of any such accountable
receipt, or any account, book or thing, written or printed, or otherwise
made capable of being read, is guilty of felony, and liable to imprison-
ment for life.— 32-33 V., c. 19, s. 26. 24-25 V., c 98, s. 23, Imp.
518 FORGERY.
The words in italics are not in the English Act ; they
constitute an important extension of the clause.
Greaves says : " This clause is new as far as it relates to
any authority or request for the payment of money, or to
any authority for the delivery or transfer of any goods, etc.,
or to any indorsement on or assignment of any such under-
taking, warrant, order, authority, request or accountable
receipt, as is mentioned in the clause. — R. v. Arscott, 6
C. & P. 408, is therefore no authority on this clause. The
words ' authority, or request for the payment of money' are
introduced to get rid of the question so commonly arising
in cases of this kind, whether the forged instrument were
either a warrant or order for the payment of money.
Eequests for the payment of money were not within these
words."— R. v. Thorn, C. & M. 206; 2 Moo. C. C. 210.
It would be a waste of space, and of no practical use to
refer to the cases that have occurred on these points ; for,
whenever there is any doubt as to the legal character of
the instrument, different counts should be inserted describ-
ing it in each by one only of the terms warrant, order,
authority or request A forged indorsement on a warrant
or order for the payment of money was not within the
former enactments. — R. v. Arscott, 6 C. & P. 408. But
this clause includes that and other forged indorsements.
Indictment. — feloniously did forge a certain
warrant for the payment of money, with intent thereby
then to defraud, against the form
(2nd Count.) feloniously did offer, utter
(as, ante, form under sect. 23.) Add separate counts, as
suggested by Or eaves, supra. See R. v. Kay, 11 Cox,
529, under next section. In R. v. Goodwin, March,
1876, Q. B , Montreal, the above form was held good,
on motion in arrest of judgment.
FORGEBY. 519
A draft upon a banker, although it be post-dated, is a
warrant and order for the payment of money. — R. v.
Taylor, 1 C. & K. 213; R. v. Willoughby, 2 East, P. G.
944. So is, even, a bill of exchange. — R. v. Sheppard, 1
Leach, 226; R. v. Smith, 1 Den. 79. An order need not
specify any particular sum to fall under the statute. — R.
v. Mcintosh, 2 East, P. G. 942. A writing in the form of
a bill of exchange, but without any drawee's name, cannot
be charged as an order for the payment of money ; at least,
unless shown by averments to be such. — R. v. Cum*y, 2
Moo. G. G. 218. In R. v. Howie, 11 Cox, 320, it was held
that a seaman's advance note was not an order for payment
of money. It would seem, however, to be an under-
taking for the payment of money within the statute. —
R. v. Bamfield, 1 Moo. G.G. 416 ; R. v. Anderson, 1M.&
Rob. 469 ; R. v. Reed, 2 Moo. C, G. 62 ; R. v. Joyce, L. & C.
576. The statute applies as well to a written promise for
the payment of money by a third person, as by the sup-
posed party to the instrument. — R. v. Stone, 1 Den. 181.
An instrument, professing to be a scrip certificate of a
railway company, is not an undertaking within the
statute. — R. v. West, 1 Den. 258. But perhaps the words
in italics in the present section would cover this case.
In R. v. Rogers, 9 G. & P. 41, it was held, that a
warrant for the payment of money need not be addressed
to any particular person. See R. v. Snelling, Dears.
219.
As to what is a warrant or order for the delivery
of goods, the following cases may be cited : — A pawnbro-
ker's ticket is a warrant for the delivery of goods. — R. v.
Morrison, Bell, C. C. 158. At the London docks, a
person bringing a " tasting order" from a merchant
having wine there, is not allowed to taste until the order
520 FORGERY.
has across it the signature of a clerk of the company ; the
defendant uttered a tasting order with the merchant's
name forged to it, by presenting it to the company's clerk
for his signature across it, which the clerk refused ; it was
held to be, in this state, a forged order for the delivery
of goods within the statute. — R. v. Illidge, 1 Den. 404.
A request for the delivery of goods need not be addressed
to any one. — R. v. Carney, 1 Moo. C. C. 351 ; R. v.
Cullen, 1 Moo. C. C. 300 ; R. v. Pulbroke, 9 C. & P. 37.
Nor need it be signed by a person who can compel a per-
formance of it, or who has any authority over or interest
in the goods.— J?, v. Thomas, 2 Moo. C. C. 16; R. v.
Thorn, 2 Moo. C. C. 210. Formerly, if upon an indict-
ment for the misdemeanor of obtaining goods under false
pretences, a felonious forgery were proved, the judge had
to direct an acquittal. — R. v. Evans, 5 C. & P. 553 ; but
now, see sect. 184 of the Procedure Act.
As to what is a receipt, under this section. — As
remarked by Greaves, sitpra, the additions in the present
clause render many of the cases on the subject of no
practical importance. A turnpike toll-gate ticket is a
receipt for money within this section. — R. v. Fitch, R. v.
Howley, L. & C. 159. If a person, with intent to defraud,
and to cause it to be supposed contrary to the fact, that
he has paid a certain sum into a bank, make in a book,
purporting to be a pass-book of the bank, a false entry,
which denotes that the bank has received the sum, he is
guilty of forging an accountable receipt for money. —
R. v. Moody, L. & C. 173; R. v. Smith, L. & C. 168.
A document called a " clearance " issued to members of
the Ancient Order of Foresters' Friendly Society, certified
that the member had paid all his dues and demands, and
authorized any Court of the Order to accept the bearer as
FORGERY. 521
a clearance member: Held, that this was not a receipt
for money under this section. — R. v. French, 11 Cox,
472. An ordinary railway ticket is not an acquittance,
or receipt, within this section, R. v. Gooden, 11 Cox,
672 ; but now, by sect. 33, jiost, forging a railway ticket
is a felony. The prisoner being pressed by a creditor
for the payment of £35 obtained further time by giving
an I. 0. U. for £35 signed by himself, and also pur-
porting to be signed by W. W's name was a forgery ;
held, that the instrument was a security for the payment
of money by W., and that the forgery of his name was
a felony within this section. — R. v. Chambers, 12 Cox,
109.
Upon the trial of any indictment for any offence under
this section, the jury may, if the evidence warrants it,
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same.
An indictment for forging a receipt under this section
must allege a receipt either for money or for goods. —
R. v. McCorkill, 8 L. C. J. 283. But the intent to
defraud any particular person need not be alleged. — R. v.
Hathaway, 8 L. C. J. 285.
The evidence of the uttering of a forged indorsement
of a negotiable check or order is insufficient to sustain a
conviction for uttering a forged order or check, under
sec. 29 of the Forgery Act. — R. v. Cunningham, CasseVs
Dig. 107.
The prisoner was indicted for forging a request for the
payment of money, the said request consisting in a forged
telegram upon which he obtained $85. Held, a forgery
as charged.— R. v. Stewart, 25 U. C. C. P. 440.
30. Every one who with intent to defraud draws, makes, signs,
accepts or indorses any bill of exchange or promissory note, or auy
522 FORGERY.
undertaking, warrant, order, authority or request for the payment of
money, or for the delivery or transfer of goods or chattels, or of any
bill, note or other security for money, by procuration or otherwise,
for, in the name, or on the account of any other person, without
lawful authority]or excuse, or offers, utters, disposes of or puts off any
such bill, note, undertaking, warrant, order, authority or request, so
drawn, made, signed, accepted or indorsed, by procuration or other-
wise, without lawful authority or excuse, knowing the same to have
been so drawn, made, signed, accepted or indorsed, as aforesaid, is
guilty of felony, and liable to fourteen years' imprisonment. — 32-33 V.,
c. 1 9, s. 27. 23-24 V., c. 98, s. 24, Imp.
Greaves says : " This clause is new, and was framed in
order to make persons punishable, who, without authority,
make, accept, or indorse bills or notes " per procuration,"
which was not forgery under the former enactments. —
Maddock's case, 2 Russ. 947 ; R. v. White, 1 Den. 208."
Indictment, as under sect, 28. See general remarks
on forgery.
A deposited with a building society £460, for two
years, at interest, through the prisoner, who was an agent
of the society. Having obtained the deposit note from
A,, who gave it up on receiving an accountable receipt for
£500, being made up by the £460, and interest, the pris-
oner wrote, without authority, the following document :
" Eeceived of the S. L. Building Society the sum of £417
13s. 0d., on account of my share, No. 8071, pp., Susey
Ambler,— William Kay," and obtained £417 13s. 0d., by
means thereof and giving up the deposit note. The jury
having found that, by the custom of the society, such
documents were treated as an " authority to pay," and as
" a warrant to pay," and as " request to pay " money, the
prisoner was convicted under 24-25 V., c. 98, s. 24 (sect.
30, ante, of our statute) : held, that the conviction was
right.— R. v. Kay, 11 Cox, 529.
Upon the trial of any indictment for any offence under
FORGERY. 523
this section, the jury may, if the evidence warrants it,
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same.
31. Whenever any cheque or draft on any banker is crossed with
the name of a banker, or with two transverse lines with the words
" and company," or any abbreviation thereof, every one who, with
intent to defraud, obliterates, adds to or alters any such crossing, or
offers, utters, disposes of or puts off any cheque or draft whereon any
such obliteration, addition or alteration has been made, knowing the
same to have been made, is guilty of felony, and liable to imprison-
ment life.— 32-33 F, c. 19, s. 28. 24-25 F, c 98, *. 25, Imp.
32. Every one who forges or fraudulently alters, or offers, utters,
disposes of or puts off, knowing the same to be forged or fraudulently
altered, any debenture issued under any lawful authority whatsover,
either within Her Majesty's dominions or elsewhere, is guilty of
felony, and liable to fourteen years' imprisonment. — 32-33 F, c. 19,
s. 29. 24-25 F, c. 98, *. 26, Imp.
On Sec. 31, Greave's says : " This clause is so framed
as to meet the case of a draft in either issue with a
crossing on it, or crossed after it was issued."
Under Sec. 32, no intent to defraud is necessary in the
indictment.
PASSENGER TICKETS.
33. Every one who, with intent to defraud, forges, offers or utters
disposes of or puts off, knowing the same to be forged, any ticket or
order for a free or paid passage on any railway or any steam or other
vessel, is guilty of felony, and liable to three years' imprisonment.
—32-33 F, c 19, s. 32.
This clause is the 14th of c. 94, C. S. C. It will meet
such cases as R. v. Gooden, 11 Cox, 672.
RECORDS, PROCESS, INSTRUMENTS OF EVIDENCE, ETC.
34. Every one who forges or fraudulently alters or offers, utters,
disposes of or puts off, knowing the same to be forged, or fraudulently
altered, any record, writ, return, panel, process, rule, order, warrant,
interrogatory, deposition, affidavit, affirmation, recognizance, cognovit
524 FOEGERY.
actionem, warrant of attorney, bill, petition, process, notice, rule,
answer, pleading, interrogatory, report, order or decree, or any original
document wkatsoever of or belonging to any court of justice, or any
document or writing, or any copy of any document or writing, used or
intended to be used as evidence in any such court, is guilty of felony,
and liable to seven years' imprisonment. — 32-33 V., c. 19 s. 33. 24-25
V., c 98, s. 27, Imp.
35. Every one who, being the clerk of any court or other officer,
having the custody of the records of any court, or being the deputy of
any such clerk or officer, utters any false copy or certificate of any
record, knowing the same to be false ; and every one, other than such
clerk, officer or deputy, who signs or certifies any copy or certificate
of any record as such clerk, officer or deputy, and every one who
forges or fraudulently alters or orFers, utters, disposes of or puts off",
knowing the same to be forged or fraudulently altered, any copy or
certificate of any record, or offers, utters, disposes of or puts off any
copy or certificate of any record having thereon any false or forged
name, handwriting or signature, knowing the same to be false or forged
and every one who forges the seal of any court of record, or forges or
fraudulently alters any process of any court whatsoever, or serves or
enforces any forged process of any court whatseover, knowing the same
to be forged, or delivers or causes to be delivered to any person any
paper, falsely purporting to be any such process or a copy thereof, or
to be any judgment, decree or order of any court whatsoever, or a copy
thereof, knowing the same to be false, or acts or prefesses to act under
any such false process, knowing the name to be false, is guilty of
felony, and liable to seven years' imprisonment. — 32-33 V., c. 19, s.
34. C. S. U. C, c. 16, s. 16, part. 24-25 V., c. 98, s. 28, Imp.
36. Every one who forges or fraudulently alters, or offers, utters,
disposes of, puts off, tenders in evidence, knowing the same to be
forged or fraudulently altered, any instrument, whether written or
printed, or partly written and partly printed, which is made evidence
by any Act of the Parliament of Canada or of the Legislature of any
Province of Canada, and for which offence no other punishment is in
this Act provided, is guilty of felony, and liable to seven years'
imprisonment— 32-33 V., c 19, s. 35. 39 V., c. 26, s. 14. C. S. C, c. 80,
s. 7, part. 24-25 V., c. 98, s. 29, Imp.
37. Every one who, —
(a) Prints any proclamation, order, regulation or appointment, or
notice thereof, and causes the same falsely to purport to have been
printed by the Queen's Printer for Canada, or the Government Printer
FORGERY. 525
for any Province of Canada, as the case maybe, or tenders in evidence
any copy of any proclamation, order, regulation or appointment,
which falsely purports to have been printed as aforesaid, knowing that
the same was not so printed ; or
(£>) Forges, or tenders in evidence, knowing the same to be forged,
any certificate authorized to be made or given by any Act of the
Parliament of Canada, or of the Legislature of any Province of
Canada, for the purpose of certifying or verifying any copy or extract
of any proclamation, order, regulation, appointment, paper, document
or writing, of which a certified copy may lawfully be offered as prima
facie evidence.
Is guilty of felony, and liable to seven years' imprisonment. — 44
V., c. 28, s. 4. 31-32 V., c. 37, s. 4, Imp.
In JR. v. Powner, 12 Cox 235, it was held by Quain,
J., that an indictment for forgery under sect. 28 of the
English Act (sect. 35 of our Act, suprd) must allege an
intent to defraud ; but that this averment was unnecessary
in a count for fraudulently altering under the same
section. — The u process " alleged to have been altered in
that case was an order by two justices of the peace,
under the poor laws, and was held to fall under the afore-
said section.
Upon the trial of any indictment for any offence under
these sections, the jury may, if the evidence warrants it,
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same. — 2 Russ. 857.
NOTARIAL ACTS, REGISTERS OF DEEDS, ETC.
38. Every one who forges or fraudulently alters, or offers, utters,
disposes of or puts off, knowing the same to be forged or fraudulently
altered, any notarial act or instrument or copy, purporting to be an
authenticated copy thereof or any proces verbal of a surveyor, or like
copy thereof, or forges or fraudulently alters, or offers or utters, dis-
poses of or puts off, knowing the same to be forged or fraudulently
altered, any duplicate of any instrument, or any memorial, affidavit,
affirmation, entry, certificate, indorsement, document or writing,
made or issued under the provisions of any Act of the Parliament of
Canada, or of the Legislature of any Province of Canada, for or relate
526 FORGERY.
ing to the registry of deeds or other instruments or documents respect-
ing or concerning the title to or claims upon any real or personal pro-
perty whatsoever, or forges, or counterfeits the seal of or belonging to
any office for the registry of deeds or other instruments as aforesaid,
or any stamp or impression of any such seal, or forges any name,
handwriting or signature, purporting to be the name, handwriting or
signature of any person to any such memorial, affidavit, affirmation,
entry, certificate, indorsement, documentor writing required or direct-
ed to be signed by or by virtue of any such Act, or offers, utters, dis-
poses of or puts off any such memorial or other writing as in this
section mentioned, having thereon any such forged stamp or impres-
sion of any such seal, or any such forged name, handwriting or signa-
ture, knowing the same to be forged, is guilty of felony, and liable to
fourteen years' imprisonment. — 32-33 V., c. 19, s. 37. 24-25 V., c 98,
j. 31, Imp.
The words in italics are not in the Imperial Act. Sec.
183 of the Procedure Act applies. — 2 Russ. 939.
ORDERS OF JUSTICES OF THE PEACE.
39. Every one who, with intent to defraud, forges or alters, or
offers, utters, disposes of or puts off, knowing the same to be forged
or altered, any summons, conviction, order or warrant, of any justice
of the peace, or any recognizance purporting to have been entered
into before any justice of the peace, or other officer authorized to take
the same, or any examination, deposition, affidavit, affirmation or
solemn declaration, taken or made before any justice of the peace, is
guilty of felony, and liable to three years' imprisonment. — 32-33 V., c.
19, s. 38. 24-25 V., c. 98, s. 32, Imp.
R. v. P owner, 12 Cox, 235, is not very clear as to what
is the difference between a " process " of a court under
sections 34 and 35, and an " order " under the present
section. The forgery of an affidavit taken before a Com-
missioner would not fall under this section.
40. Every one who, with intent to defraud, forges or alters any
certificate, report, entry, indorsement, declaration of trust, note,direc«
tion, authority, instrument or writing made or purporting or appear-
ing to be made by any judge, commissioner, clerk or other officer of
any court in Canada, or the name, handwriting or signature of any
FORGERY. 527
such judge, commisssoner, clerk, or other officer, as aforesaid, or
offers, utters, disposes of or puts off any such certificate, report, entry,
indorsement, declaration of trust, note, direction, authority, instru-
ment or writing, knowing the same to be forged or altered, is guilty
of felony, and liable to fourteen years' imprisonment. — 32-33 F, c. 19,
*. 39. C. S. 0. C, c. 16, «. 16, part. 24-25 F, c 98, s. 33, Imp.
See general remarks on forgery.
41. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, in the name of any other person, acknow-
ledges any recognizance of bail, or any cognovit actionem, or judg-
ment, or any deed or other instrument, before any court, judge, nota-
ry, or other person lawfully authorized in that behalf, is guilty of
felony, and liable to seven years' imprisonment. — 32-33 F, c. 19, s. 40.
24-25 F, c. 98, s.MJmp.
Indictment. — on feloniously did, with-
out lawful authority or excuse, before (the said
then being lawfully authorized in that behalf)
acknowledge a certain recognizance of bail in the name of
J. N. in a certain cause then pending in the said court
(or in the court of ) wherein A. B. was plaintiff,
and C. D. defendant, against the form — Archbold,
615; 2 Raw. 1016.
Upon the trial of any indictment, for any offence under
this section, the jury may, if the evidence warrants it,
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same.
MARRIAGE LICENSES.
42. Every one who forges or frudulently alters any license or cer-
tificate for marriage, or offers, utters, disposes of or puts off any such
license or certificate, knowing the same to be forged or fraudulently
altered, is guilty of felony, and liable to seven years' imprisonment. —
32-33 F. c. 19, s. 41. 24-25 F, c. 98, *. 35, Imp.
REGISTERS OF BIRTHS, MARRIAGES AND DEATHS.
43. Every one who unlawfully destroys, defaces or injures, or
causes or permits to be destroyed, defaced or injured, any register of
528 FORGERY.
births, baptisms, marriages, deaths or burials, authorized or required
to be kept in Canada, or in any Province of Canada, or any part of
any such register, or any certified copy of any such register, or of any
part thereof, or forges or fraudulently alters in any such register any
entry relating to any birth, baptism, marriage, death or burial, or any
part of any such register, or any certified copy of such register, or of
any part thereof, or knowingly and unlawfully inserts, or causes or
permits to be inserted in any such register, or in any certified copy
thereof, any false entry of any matter relating to any birth, baptism,
marriage, death or burial, or knowingly and unlawfully gives any false
certificate relating to any birth, baptism, marriage, death or burial, or
certifies any writing to be a copy or extract from any such register,
knowing such writing, or the part of such register whereof such copy
or extract is so given, to be false in any material particular, or forges
or counterfeits the seal of or belonging to any registry office or burial
board, or offers, utters, disposes of or puts off any such register, entry,
certified copy, certificate or seal, knowing the same to be false, forged
or altered, or offers, utters, disposes of, or puts off any copy or any
entry in any such register, knowing such entry to be false, forged or
altered, is guilty of felony, and liable to imprisonment for life. — 32-33
V., c 19, s. 42. 24-25 V., c. 98, s. 36, Imp.
44. Every one who, knowingly and wilfully, inserts or causes, or
permits to be inserted, in any copy of any register directed or required
by law to be transmitted to any registrar or other officer, any false
entry of any matter relating to any baptism, marriage or burial, or
forges or alters, or offers, utters, disposes of or puts ofl, knowing the
same to be forged or altered, any copy of any register so directed or
required to be transmitted as aforesaid, or knowingly or wilfully signs
or verifies any copy of any register so directed or required to be trans-
mitted as aforesaid, which copy is false in any part thereof, knowing
the same to be false, or unlawfully destroys, defaces or injures, or for
any fraudulent purpose, takes from its place of deposit, or conceals
auy such copy of any register, is guilty of felony, and liable to impris-
onment for life.— 32-33 V., c. 19, s. 43. 24-25 V., c. 98, *. 37, Imp.
Indictment under sect. 43 for making a false entry
in a marriage register. — feloniously, knowingly
and unlawfully did insert in a certain register of marriages,
which was then by law authorized to be kept, a certain
false entry of a matter relating to a supposed marriage, and
FORGERY. 529
which said false entry is as follows : that is to say (set it
out verbatim with inuendoes if necessary to explain it;)
whereas in truth and in fact the said A. B. was not mar-
ried to the said C. D., at the said church, on the said
day of as in the said eutry is falsely alleged and
stated ; and whereas, in truth and in fact, the said A. B.
was not married to the said C. D. at the said church or
elsewhere, at the time in the said entry mentioned, or at
any other time whatsoever, against the form
(2nd Count.) feloniously did. knowingly and wil-
fully, offer, utter, dispose of and put off a copy of a certain
other false entry relating to a certain supposed marriage,
which said last mentioned false entry was before then
inserted in a certain register of marriages, by law authorized
to be kept, and which said last mentioned false entry is as
follows : that is to say (set it out) whereas in truth and in
fact (as above). And the jurors aforesaid, upon
their oath aforesaid, do say that the said J. S. at the time
he so offered, uttered, disposed of and put off the said copy
of the said last mentioned false entry well knew the said
last mentioned false entry to be false against the form
—Archbold. See R. v. Sharpe, 8 C. & P. 436.
In R. v Bowen, 1 Den. 22, the indictment was under
what is now the first part of sect. 43, and charged that
"John Bowen feloniously and wilfuly (wilfully
must now be unlawfully) did destroy, deface and injure a
certain register of to wit, the register of
which said register was then and there kept (and by law
authorized to be kept) as the register of the parish of
and was then and there in the custody of rector
of the said parish of against the form It
was objected that the indictment was bad for charging
three offences, destroying, defacing * and " injuring, the
KK
,
530 FORGERY.
statute saying, destroying, defacing " or " injuring. A
second objection was taken that no scienter was charged,
and that the word " knowingly " was not in the indictment.
The indictment was held good.
In R. v. Asplin, 12 Cox 391, it was held by Martin,
B., that upon an indictment under sect. 36 (sect. 43 of
our Act,) for making a false entry into a marriage register,
it is not necessary that the entry should be made with
intent to defraud, and that it is no defence that the mar-
riage solemnized was null and void, being bigamous ; also
that, if a person knowing his name to be A., signs another
name without authority, he is guilty, and it is immaterial
that he is a third witness, the Marriage Act only requiring
two.
Upon the trial of any indictment for any offence under
these sections, the jury may, if the evidence warrants it,
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same. — 2 Buss. 939.
DEMANDING PROPERTY UPON FORGED INSTRUMENTS.
45. Every one who, intent to defraud, demands, receives or obtains,
or causes or procures to be delivered or pay to any person, or endea-
vors to receive or obtain, or to cause or procure to be delivered or
paid to any person, any chattel, monej-, security for money or other
property whatsoever, under, upon or by virtue of any forged or alter-
ed instrument whatsoever, knowing the same to be forged or altered,
or under, upon or by virtue of any probate or letters of administration,
knowing the will, testament, codicil, or testamentary writing on which
such probate or letters of administration were obtained, to have been
forged or altered, or knowing such probate or letters of administration
to have been obtained by any false oath, affirmation or affidavit, is
guilty of felony, and liable to fourteen years' imprisonment — 32-33 V.,
c. 19, s. 44. 24-25 V., c. 98, s. 38, Imp.
Greaves says : " This clause is new. It is intended to
embrace every case of demanding, etc., any property
whatsoever upon forged instruments ; and it is intended to
FORGERY. 531
include bringing an action on any forged bill of exchange,
note, or other security for money. The words 'procure to
be delivered or paid to any person were inserted to include
cases where one person' by means of a forged instrument
causes money to be paid to another person, and to avoid
the difficulty which had arisen in the cases as to obtaining
money by false pretences. — R. v. Wavell, 1 Moo. C. G.
224; R. v. Garrett, Dears. 232."
In R. v. Adams, 1 Den. 38, the prisoner had obtained
goods at a store with a forged order ; this was held not to
be larceny ; it would now fall under this clause.
The clause seems to cover the attempt to commit the
offence, as well as the offence itself, and if, under sec. 183
of the Procedure Act, a verdict of guilty of the attempt to
commit the offence could be given by the jury, the prisoner
would stand convicted of a felony, and punishable under
this clause, though see R. v. Connell, 6 Cox, 178.
CASES NOT OTHERWISE PROVIDED FOR.
46. Every one who, for any purpose of fraud or deceit, forges or
fraudulently alters any document or thing written, printed or other-
wise made capable of being read, or offers, utters, disposes of or puts
off any such forged or altered document or thing, knowing the same
to be forged or altered, is guilty of felony, and liable to imprisonment
for life.— 32-33 V., c 19,*. 45, part.
See remarks under sec. 3, ante.
47. If by this or any other Act any person is liable to punishment
for forging or altering, or for offering, uttering, disposing of or putting
off, knowing the same to be forged or altered, any instrument or
writing designated in such Act by any special name or description,
andsuch instrument or writing, however designated, is in law a will,
testament, codicil or testamentary writing, or a deed, bond or writing
obligatory, or a bill of exchange, or a promissory note for the payment
of money, or an indorsement on or assignment of a bill of exchange
or promissory note for the payment of money, or an acceptance of a
bill of exchange, or an undertaking, warrant, order, authority or
532 FOKGEKY.
request for the payment of money, or an indorsement on or assign-
ment of an undertaking, warrant, order, authority or request for the
payment of money, within the true intent and meaning of this Act,
every one who forges or alters such instrument or writing:, or offers,
utters, disposes of or puts off such instrument or writing, knowing the
same to be forged or altered, may be indicted as an offender against
this Act, and punished accordingly.— 32-33 V., c 19, s. 46. 24-25 V.,
c. 98, s. 39, Imp.
48. Every one who, in Canada, forges or alters, or offers, utters,
disposes of or puts off, knowing the same to be forged or altered, any
writing or matter of which the forging or altering, or the offering,
uttering, disposing of or putting off, knowing the same to be forged or
altered, is, in this Act, expressed to be an offence, in whatsover
country or place out of Canada, whether under the dominion of
Her Majesty or not, such writing or matter purports to be made or
has been made, and in whatsoever language the same or any part
thereof is expressed, and every one who aids, abets or counsels the
commission of any such offence, shall be deemed to be an offender
within the meaning of this Act, and shall be punishable in the same
manner as if the writing or matter purported to be made or was made
in Canada,— 32-33 V., c. 19, s. 47, part. 24MF., c. 98, s. 40, Imp.
49. Everyone who, in Canada, forges or alters or offers, utters,
disposes of or puts off, knowing the same to be forged or altered, any
bill of exchange, or any promissory note for the payment of money,
or any indorsement on or assignment of any bill of exchange
or promissory note for the payment of money, or any accep-
tance of any bill of exchange, or any undertaking, warrant, order,
authority or request for the payment of money, or for the delivery or
transfer of any goods or security, or any deed, bond or writing obli-
gatory for the payment of money (whether such deed, bond or writing
obligatory is made only for the payment of money, or for the payment
of money together with some other purpose), or any indorsement on
or assignment of any such undertaking, warrant order, authority,
request, deed, bond or writing obligatory, in whatsoever place or
country out of Canada, whether under the dominion of Her Majesty
or not, the money payable or secured by such bill, note, undertaking,
warrant, order, authority, request, deed, bond or writing obligatory
is or purports to be payable, and in whatsoever lauguage the same
respectively or any part thereof is expressed, and whether such bill,
note, undertaking, warrant, order, authority or request is or is not
under seal, and every one who aids, abets or counsels the commission
FORGEKT. 533
of any such offence, shall be deemed to be an offender within the
meaning ofthis Act, and shall be punishable in the same manner as if
the money purported to be payable or was payable in Canada. — 32-33
V., c 19, s. 47, part. 24-25 V., c 98, s. 40, Imp.
In R. v. Lee, 2 M. <fc Rob. 281, it was held that in an
indictment under this last section for uttering a forged
foreign bill or note, the bill or note need not be alleged
to be payable out of England. Sec. 47 was at first enacted
in England as 11 Geo. 4 and 1. Will 4. See 2 Bishop,
2 Cr. Proc. 446, as to this section.
Prisoner was indicted along with W. The first count
charged W. with forging a circular note of the National
Bank of Scotland, and the second with uttering it, knowing
it to have been forged. Prisoner was charged as an acces-
sory before the fact. Evidence was admitted showing that
two persons, named F. and H., been tried and convicted in
Montreal for uttering similar forged circular notes, printed
from the same plate as those uttered by W. ; that prisoner
was in Montreal with F., they having arrived and regis-
tered their names together at the same hotel and occupied
adjoining rooms ; that after H. and F. had been convicted
on one charge they admitted their guilt on several others :
and that a number of these circular notes were found on
F. and H., which were produced at the trial of the prisoner.
Before the evidence was tendered it was proved that the
prisoner was in company with W., who was proved to have
uttered similar notes. Evidence was also admitted, show-
ing that a large number of the notes were found concealed
at a place near where the prisoner had been seen, and were
concealed, as alleged, by him after W. had been arrested.
Held, that the evidence was properly received in proof of
the guilty knowledge of the prisoner. — The Queen v. Bent,
10 0. R. 559.
534 FORGERY.
50. Whenever, by any Act, any person falsely making, forging,
counterfeiting, erasing or altering any matter whatsoever, or utter
ing, publishing, offering, disposing of, putting off or making use of
any matter whatsoever, knowing the same to have been falsely made,
forged, counterfeited, erased or altered, or any person demanding or
endeavoring to receive or have anything, or to do or to cause to be
done any act, upon or by virtue of any matter whatsoever, knowing
such matter to have been falsely made, forged, counterfeited, erased,
or altered, — or whenever, by any such Act, any person falsely person-
ating another, or falsely acknowledging anything in the name of
another, or falsely representing any other person than the real person
to be such real person, or wilfully making a false entry in any book,
account or document, or in any manner wilfully falsifying any part
of any book, account or document, or wilfully making a transfer of
any stock, annuity or fund in the name of any person not being the
owner thereof, or knowingly taking any false oath, or knowingly
making any false affidavit or false affirmation, or demanding or
receiving any money or other thing by virtue of any probate or
letters of administration, knowing the will on which such probate was
obtained to have been false or forged, or knowing such probate or
letters of administration to have been obtained by means of any false
oath or false affirmation, — or whenever, by any such Act, any person
making or using, or knowingly having in his custody or possession
any frame, mould or instrument for the making of paper, with certain
words visible in the substance thereof, or any person making such
paper, or causing certain words to appear visible in the substance
of any paper, would, according to the provisions contained in any
such Act, be guilty of felony, and be liable to any greater punishment
than is provided by this Act, — if any person is convicted of any such
felony as is in this section mentioned, or of aiding, abetting, coun-
selling or procuring the commission thereof, and the same is not
punishable under any of the other provisions of this Act, every such
person shall be liable to imprisonment for life. — 32-33 V., c. 19, *.
56 . 24-25 V., c. 98, s. 48, Imp .
CHAPTER 167.
AN ACT EESPECTING OFFENCES EELATIXG TO
THE COIN.
HER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
1. In this Act, unless the context otherwise requires, —
(a) The expression " current gold or silver coin " includes any gold
or silver coined in any of Her Majesty's mints, or gold or silver coin
of any foreign prince or state, or country, or other coin lawfully
current, by virtue of any proclamation or otherwise, in Canada, or in
any other part of Her Majesty's dominions ;
(6.) The expression " current copper coin " includes any copper
coin and any coin of bronze or mixed metal coined in any of Her
Majesty's mints or lawfully current, by virtue of any proclamation or
otherwise, in Canada, or any other part of Her Majesty's dominions ;
(c.) The expression " copper or brass coin " includes coins and
tokens of bronze, or of any other mixed metal, or other than gold or
silver ;
(d) The expression " false or counterfeit coin, resembling or appa-
rently intended to resemble or pass for current gold or silver coin,"
or other similar expression, includes any of the current coin which
has been gilt, silvered, washed, colored or cased over, or in any
manner altered so as to resemble or be apparently intended to re-
semble or pass for any of the current coin of a higher denomination ;
(e.) The expression " current coin " includes any coin coined in any
of Her Majesty's mints, or lawfully current, by virtue of any procla-
mation or otherwise, in Canada, or any other part of Her Majesty's
dominions ; and whether made of gold, silver, copper, bronze or
mixed metal — 31 V.yc 47, s. 10. 32-33 V., c 18, *. 1, part. 24-25
V., c. 99, s. 1, Imp.
As to apprehension of offenders against this Act, see
sec. 29 Procedure Act.
By sec. 205 of the Procedure Act, it is enacted that :
u Upon the trial of any person accused of any offence respecting
536 THE COIN ACT.
the currency or coin, or against the provisions of the " Act respecting
offences relating to the Coin, " no difference in the date or year, or in
any legend marked upon the lawful coin described in the indictment,
and the date or year or legend marked upon the false coin counter-
feited to resemble or pass for such lawful coin, or upon any die,
plate, press, tool or instrument used, constructed, devised, adapted or
designed, for the purpose ofconterfeiting or imitating any such lawful
coin, shall be considered a just or lawful cause or reason for acquit-
ting any such person of such offence ; and it shall, in any case, be
sufficient to prove such general resemblance to the lawful coin as
will show an intention that the counterfeit should pass for it.
See also sees. 55, 56,115, 209 and 229 of Procedure
Act,
OFFENCES EELATING TO THE COIN.
The Imperial Act applies only to the " Queen's current,
gold and silver coin," coined in any of Her Majesty's mints
or lawfully current in any part or Her Majesty's domi-
nions in or out of the United Kingdom. The Canadian
Act includes gold or silver coin of any foreign prince, state
or country current in Canada, or in any other part of Her
Majesty's dominions. But the clause is so framed, in the
English Act, as to include all such coin, though the words
" of any foreign prince, state or country " are not inserted.
As to venue in certain cases, see sec. 23 of the Proce-
dure Act.
2. Whenever the having any matter in the custody or possession
of any person is mentioned in this Act, it shall include not only the
having of it by himself in his personal custody or possession, but also
the knowingly and wilfully having it in the actual custody or posses-
sion of any other person, and also the knowingly and wilfully having
it in any dwelling-house or other building, lodging, apartment, field
or other place, open or inclosed, whether belonging to or occupied by
himself or not, and whether such matter is so had for his own use or
benefit, or for that of any other person. — 32-33 V., c 18, s. 1, part.
24-25 V., c. 99, s. 1, Imp.
This clause is to cover questions which came up in R.
THE COIN ACT. 537
v. Rogers, 2 Moo. C. C. 45 ; R. v. Gerrich, 2 M. & Rob,
219, and R. v. Williams, 1 C. & M. 259. — Greaves,
Con. Acts, 318.
3. Every one who falsely makes or counterfeits any coin resem-
bling or apparently intended to resemble or pass for any current gold
or silver coin, is guilty of felony, and liable to imprisonment for life. —
32-33 Y., c 18, *. 2. 24-25 F., c. 99, s. 2, Imp.
Indictment. — The Jurors for Our Lady the Queen
upon their oath present, that J. S., on often pieces
of false and counterfeit coin, each piece thereof resem-
bling and apparently intended to resemble and pass for
a piece of current gold coin, called a sovereign, falsely and
feloniously did make and counterfeit, against the form
— Archbold, 744.
It is rarely the case that the counterfeiting can be proved
directly by positive evidence; it is usually made out by
circumstantial evidence, such as finding the necessary
coining tools in the defendant's house, together with some
pieces of the counterfeit money in a finished, some in an
unfinished state, or such other circumstances as may fairly
warrant the jury in presuming that the defendant either
counterfeited or caused to be counterfeited, or was present
aiding and abetting in counterfeiting the coin in question.
Before the modern statutes which reduced the offence of
coining from treason to felony, if several conspired to coun-
terfeit the Queen's coin, and one of them actually did so in
pursuance of the conspirary, it was treason in all, and they
might all have been indicted for counterfeiting the Queen's
coin generally, 1 Hale, 214 ; but now only the party who
actually counterfeits would be the principal felon, and the
others, accessories before the fact, although triable as
principals.
A variance between the indictment and the evidence in
538 THE COIN ACT.
the number of the pieces of coin, alleged to be counter-
feited, is immaterial ; but a variance as to the denomination
of such coin, as guineas, sovereigns, shillings, would be
fatal, unless amended. By the old law the counterfeit
coin produced, in evidence must have appeared to have
that degree of resemblance to the real coin that it would be
likely to be received as the coin for which it was intended
to pass by persons using the caution customary in taking
money. In jB. v. Varley, 1 East, P. G. 164, the defen-
dant had counterfeited the semblance of a half-guinea
upon a piece of gold previously hammered, but it was not
round, nor would it pass in the condition in which it then
was, and the judges held that the offence was incomplete.
So, in R. v. Harris, 1 Leach, 135, where the defendants
were taken in the very act of coining shillings, but the
shillings coined by them were taken in an imperfect state,
it being requisite that they should undergo another process,
namely immersion in diluted aquafortis, before they could
pass as shillings, the judges held that the offence was
incomplete ; but now by sect. 27, post, of the Coin Act,
the offence of counterfeiting shall be deemed complete
although the coin made or counterfeited shall not be in a
fit state to be uttered, or the counterfeiting thereof shall
not be finished or perfected.
Any credible witness may prove the coin to be counter-
feit, and it is not necessary for this purpose to produce any
moneyer or other officer from the mint, sect. 229 Pro-
cedure Act. If it become a question whether the coin,
which the counterfeit money was intended to imitate, be
current coin, it is not necessary to produce the proclam-
ation to prove its legitimation ; it is a mere question of
fact to be left to the jury upon evidence of usage, reputa-
tion, etc. — Hale, 196, 212, 213. It is not necessary to
THE COIN ACT. 539
prove that the counterfeit coin was utered or attempted to
be uttered.— 1 East, P. C. 165 ; Archbold, 744 ; R. v.
Robinson, 10 Cox, 107 ; R. v. Connell, 1 C. and K. 190 ;
R. v. Byrne, 6 Coa;, 475.
By sect. 183 of the Procedure Act, if, upon the trial for
any felony, it appears that the defendant did not complete
the offence charged, but was only guilty of an attempt to
commit the same, a verdict may be given of guilty of the
attempt.
4. Every one who gilds or silvers, or with any wash or materials
capable of producing the color or appearance of gold or of silver, or
by any means whatsoever, washes, cases over or colors any coin,
whatsoever, resembling or apparently intended to resemble or pass
for any current gold or silver coin, — or gilds or silvers, or with any
wash or materials capable of producing the color or appearance of
gold or silver, or by any means whatsoever, washes, cases over or
colors any piece of silver or copper, or of coarse gold or coarse silver,
or of any metal or mixture of metals respectively, being, of a fit size
and figure to be coined, and with intent that the same shall be coined
into false and counterfeit coin resembling or apparently intended to
resemble or pa«s for any current gold or silver coin, — or gilds or, with
any wash or materials capable of producing the color and appearance
of gold, or by any means whatsoever, washes, cases over or colors
any current silver coin, or files or in any manner alters such
coin, with intent to make the same resemble or pass for any current
gold coin, — or gilds or silvers or with any wash or materials capable
of producing the color or appearance of gold or silver, or by any
means whatsoever washes, cases over or colors any current copper
coin, or files or in any manner alters such coin with intent to make
the same resemble or pass for any current gold or silver coin, is
guilty of felony, and liable to imprisonment for life. — 32-33 V., c. 18,
s. 3. 24-25 V., c. 99, s. 3, Imp.
Indictment for colouring coin falsely, deceitfully
and feloniously did gild a certain false and counterfeit coin
resembling a certain piece of current gold coin, called a
sovereign, against the form — Archbold.
Prove the gilding, etc., or colouring as stated in the
540 THE COIN ACT.
indictment. Where the defendant was apprehended in the
act of making counterfeit shillings, by steeping round
blanks, composed of brass and silver in aqua fortis, none
of which were finished, but exhibited the appearance of
lead, though by rubbing they readily acquired the appear-
ance of silver, and would pass current, it was doubted
whether this was within the late Act, but the judges held
the conviction to be right. — R. v. Case, 1 Leach, 145. In
another case a doubt was expressed whether an immersion
of a mixture, composed of silver and base metal, into aqua
fortis, which draw the silver to the surface, was colouring
within the repealed statutes, and whether they were not
intended to apply only to a colouring produced by a super-
ficial application. R. v. Lavey, 1 Leach, 153. But the
words " capable of producing " seem to have been intro-
duced into the recent statute for the purpose of obviating
the doubt. Moreover the present statute adds the general
words " or by any means whatsoever." Where a wash or
material is alleged to have been used by the defendant, it
must be shown either from the application by the defen-
dant, or from an examination of their properties, that they
are capable of producing the color of gold or silver. But
an indictment charging the use of such material will be
supported by proof of a colouring with gold itself. — R. v.
Turner, 2 Moo. C. C. 41. — Archbold, 746. Where direct
evidence of the act of colouring cannot be obtained, cir-
cumstances may be shown from which the act may be
presumed, as that the prisoner was in possession of false
coin, and that blanks coloured and materials for colouring
were found in his house. — 1 Burn, 806.
Indictment for colouring metal, etc falsely, deceit-
and feloniously did gild ten pieces of silver, each piece
thereof being respectively of a fit size and figure to be
THE COIN ACT. 541
coined, and with intent that each of the said pieces of silver
respectively should be coined into false and counterfeit
coin resembling a piece of current gold coin, called a sover-
eign, against the form — Archbold.
An indictment charging the gilding of sixpences " with
materials capable of producing the colour of gold" is good,
and is supported by proof of colouring sixpences with
gold.— R. v. Turner, 2 Moo. C. C. 41.
5. Every one who impair?, diminishes or lightens any current
gold or silver coin, with intent that the coin so impaired, diminished,
or lightened may pass for current gold or silver coin is guilty of
felony, and liable to fourteen years' imprisonment. — 32 33 V., c 18,
s. 4. 24-25 V., c. 99, *. 4, Imp.
6. Every one who unlawfully has in his custody or possession any
filings or clippings, or any gold or silver bullion, or any gold or silver
in dust, solution or otherwise, which have been produced or obtained
by impairing, diminishing or lightening any current gold or silver
coin, knowing the same to have been so produced or obtained, is
guilty of felony, and liable to seven years' imprisonment. — 32-33 P.,
c. 18, .y. 5. 24-25 V., c. 99, s. 5, Imp.
Indictment. — ten pieces of current gold coin,
called sovereigns, falsely, deceitfully and feloniously did
impair, with intent that each of the ten pieces so impaired
might pass for a piece of current gold coin, called a sove-
reign, against the form — Archbold.
The act of impairing must be shown, either by direct
evidence of persons who saw the prisoner engaged in it, or
by presumptive evidence, such as the possession of filings
and of impaired coin, or of instruments for filing, etc. The
intent to pass off the impaired coin must then appear. Thi3
may be done by showing that the prisoner attempted to
pass the coin so impaired, or that he carried it about his
person, which would raise a presumption that he intended to
pass it. And if the coin were not so defaced by the process
542 THE COIN ACT.
by impairing, as apparently to affect its currency, it would,
under the circumstances, without further evidence, be a
question for the jury, whether the diminished coin was
intended to be passed. — Roscoe on Coining, 19. As to
sect. 5, Greaves remarks : " This clause is new. It
has frequently happened that filings and clippings, and
gold dust have been found under such circumstances as to
leave no doubt that they were produced by impairing coin,
but there has been no evidence to prove that any particular
coin had been impaired. This clause is intended to meet
such cases."
7. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, buys, sells, receives, pays or puts off, any
false or counterfeit coin, resembling or apparently intended to resemble
or pass for any current gold or silver coin, at or for a lower rate or
value than the same imports, or was apparently intended to import,
is guilty of felony, and liable to imprisonment for life. — 32-33 V., c.
18, s. 6, part. 24-25 V., c. 99. s. 6, Imp.
Indictment. — ten pieces of false and counterfeit
coin, each piece thereof resembling a piece of the current
gold coin, called a sovereign, falsely, deceitfully and felon-
iously, and without lawful authority or excuse did put off
to one J. N. at and for a lower rate and value than the
same did then import; against the Archbold, 750.
Prove that the defendant put off the counterfeit coin as
mentioned in the indictment. In R. v. Woolridge, 1 Leach >
307, it was holden that the putting off must be complete
and accepted. But the words offer to buy, sell, &c, in the
above clause would now make the acceptation immaterial.
The last part of the clause refers to the indictment ; by
it, the cases of R. v. Joyce, and R. v. Hedges, 3 C. & P. 410,
would not now apply. — Archbold, 751. If the names of
the persons to whom the money was put off can be ascer-
tained, they ought to be mentioned and laid severally in
THE COIN ACT. 543
the indictment ; but if they cannot be ascertained the
same rule will apply which prevails in the case of stealing
the property of persons unknown. — 1 Russ. 135.
i 8. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, imports or receives into Canada any false
or counterfeit coin, resembling or apparently intended to resemble or
pass for any current gold or silver coin, knowing the same to be false
or counterfeit, is guilty of felony, and liable to imprisonment for
life. — 32-33 V.} c. 18, s. 7. 24-25 V., c 99, *. 7, Imp.
Indictment. — ten thousand pieces of false and
counterfeit coin, each piece thereof resembling a piece of
the current silver coin called a shilling, falsely, deceitfully
and feloniously, and without lawful authority or excuse,
did import into Canada, — he the said J. S. at the said time
when he so imported the said pieces of false and coun-
terfeit coin, well knowing the same to be false and counter-
feit ; against the form — Archbold, 751; 1 Buss.
108 ; 1 Burn, 867.
The guilty knowledge of the defendant must be averred
in the indictment and proved.
O. Every one who, without lawful authority or excuse the proof
whereof shall lie on him, exports or puts on board any ship, vessel
or boat or on any raihcay or carriage or vehicle of any description
whatsoever, for the purpose of being exported from Canada, any false or
counterfeit coin, resembling or apparently intended to resemble or
pass for any current coin, or for any foreign coin of any prince,
country or state, knowing the sa meto be false or counterfeit, is guilty
of a misdemeanor, and liable to imprisonment for any term less
than two years.— 32-33 V., c 18, s. 8. 24-25 V., c. 99, s. 8, Imp.
The words in italics are not in the Imperial Act.
The clause covers the attempt to export in certain cases.
Sec. 183 of the Procedure Act would cover other cases
of attempts.
Indictment. — One hundred pieces of false and
544 THE COIN ACT.
counterfeit coin, each piece thereof resembling a piece of
the current coin called a sovereign, falsely, deceitfully and
knowingly, and without lawful authority did export from
Canada, he the said C. D. at the time when he so exported
the said pieces of false and counterfeit coin, then well
knowing the same to be false and counterfeit ; against
1 Burn, 825. See observations on last preceding
clause.
10. Every one who tenders, utters or puts off, any false or coun-
terfeit coin, resembling or apparently intended to resemble or pass for
any current gold or silver coin, knowing the same to be false or
counterfeit, is guilty of a misdemeanor, and liable to fourteen years'
imprisonment. — 32-33 V., c. 18, s. 9. 24-25 V., c- 99, s. 9, Imp.
11. Every one who tenders, utters or puts off as being current, any
gold or silver coin of less than its lawful weight, knowing such coin
to have been impaired, diminished or lightened, otherwise than by
lawful wear, is guilty of a misdemeanor, and liable to one year's
imprisonment. — 32-33 V., c. 18, s. 10.
12. Every one who has in his custody or possession any false or
counterfeit coin, resembling or apparently intended to resemble or
pass for any cuarent gold or silver coin, knowing the same to be false
or counterfeit coin, and with intent to utter or put off any such false
or counterfeit coin, is guilty of a misdemeanor, and liable to three
years' imprisonment.— 32-33 V., c. 18, s. 11. 24-25 V-, c. 99, s. 11,
Imp.
Indictment for uttering counterfeit coin. —
One piece of false and counterfeit coin resembling a piece
of the current gold coin, called a sovereign, unlawfully,
falsely and deceitfully did utter to one J. N., he the said
(defendant) at the time he so uttered the said piece of false
and counterfeit coin, well knowing the same to be false
and counterfeit; against the form — Archbold.
Prove the tendering, uttering or putting off the sovereign
in question, and prove it to be a base and counterfeit
sovereign. Where a good shilling was given to a Jew boy
THE COIX ACT. 545
for fruit, and he put it into his mouth under pretence of
trying whether it were good, and then taking a bad shilling
out of his mouth instead of it, returned it to the prosecutor,
saying that it was not good; this (which is called ringing
the changes) was holden to be an uttering, indictable as
such. — R. v. Franks, 2 Leach, 644 ; Archbold, 753. The
giving of a piece of counterfeit money in charity is not an
uttering, although the person may know it to be counter-
feit ; as in cases of this kind, there must be some inten-
tion to defraud.— R. v. Page, 8 C. and P. 122. But this
case has been overruled. — R. v. Ion, 2 Ben. 475 ; 1 Russ,
126.
A prisoner went into a shop, asked for some coffee and
sugar, and in payment put down on the counter a counter-
feit shilling : the prosecutor said that the shilling was a
bad one ; whereupon the prisoner quitted the shop, leav-
ing the shilling and also the coffee and sugar : held that
this was an uttering and putting off within the statute.
— R. v. Welch, 2 Den. 78. The prisoner and J. were in-
dicted for a misdemeanor in uttering counterfeit coin.
The uttering was effected by J. in the absence of the pris-
oner, but the jury found that they were both engaged on
the evening on which the uttering took place in the com-
mon purpose of uttering counterfeit shillings, and that in
pursuance of that common purpose, J. uttered the coin in
question : Held, that the prisoner was rightly convicted
as a principal, there being no accessories in a misde-
meanor.— R. v. Greenwood, 2 Den. 453. If two jointly
prepare counterfeit coin, and utter it in different shops
apart from each other but in concert, intending to share
the proceeds, the utterings of each are the joint titter-
ings of both, and they may be convicted jointly. — R. v.
Hurse, 2 M. and Rob. 360.
LL
546 THE COIN ACT.
R. v. Else, R. & R. 142 ; R. v. Manners, 7 C. & P.
801 ; R. v. Page, 9 C. & P. 756 ; 2 Moo. C. C. 219 ; are
not law. — Archbold, 754. Husband and wife were jointly
indicted for uttering counterfeit coin : held, that the wife
was entitled to an acquittal, as it appeared that she utter-
ed the money in the presence of her husband. — R. v.
Price, 8 C. & P. 19. A wife went from house to house
uttering base coin; her husband accompanied her but
remained outside : Held, that the wife acted under
her husband's compulsion. — Conolley's case, 2 Lewin,
229. Sarah McGinnes was indicted for uttering coun-
terfeit coin. It appeared that at the time of the com-
mission of the offence, she was in company with a man
who went by the same name, and who was convicted
of the offence at the last assizes. When the prisoners
were taken into custody the police constable addressed
the female prisoner as the male prisoner's wife. The male
prisoner denied the fact (of her being his wife), in the
hearing and presence of the woman. Sarah McGinnes
since her committal had been confined of a child : Held,
per Byles, J., that, under the circumstances, although the
woman had not pleaded her coverture, and even although
she had not asserted she was married to the male prisoner,
when he stated she was not his wife, it was a question for
the jury whether, taking the birth of the child and the
whole circumstances, there was not evidence of the mar-
riage, and the jury thought there was, and acquitted her,
as being under the influence of her husband, when she
uttered the coin. — R. v. McGinnes, 11 Cox, 391.
Proof of the guilty knowledge by the defendant must
be given. This of course must be done by circumstantial
evidence. If, for instance, it be proved that he uttered,
either on the same day or at other times, whether before
THE COIN ACT. 547
or after the uttering charged, base money, either of the
same or of a different denomination, to the same or to a
different person, or had other pieces of base money about
him when he uttered the counterfeit money in question ;
this will be evidence from which the jury may presume a
guilty knowledge. — Archbold, 754; 1 Buss. 127.
Indictment for having in possession counterfeit gold
or silver coin with intent, etc., unlawfully,
falsely and deceitfully had in his custody and possession
four pieces of false and counterfeit coin, resembling the
current silver coin called ,with intent to utter the
said pieces of false and counterfeit coin, he the said J. S.
then well knowing the said pieces of false and counterfeit
coin to be false and counterfeit; against — Archbold,
757. As to what constitutes the having in possession, see
sect.
Seei2. v. Hermann, 14 Cox, 279.
13. Every one who, having been convicted of any such misde-
meanor as in any of the three sections next preceding mentioned, or of
any misdemeanor or felony against this or any other Act relating to
the coin, afterwards commits any of the misdemeanors in any of the
said sections mentioned, is guilty of felony, and liable to imprisonment
for life.— 32-33 V.,c. 18, s. 12. 24-25 V., c. 99, .?. 12, Imp.
The prisoner was indicted under this section. In the
first instance, he was arraigned upon that part of the indict-
ment relating to the subsequent offence and found guilty,
and then upon the previous conviction and found not guilty.
Held, that the conviction for a misdemeanor could be
entered upon that verdict. — R. v. Thomas, 13 Cox, 52.
See sec. 139 and 207 of the Procedure Act, as to pro-
cedure when a previous offence is charged, corresponding
to sect. 116 of the Imperial Larceny Act, and 37 of the
Imperial Coin Act. — R. v. Martin, 11 Cox, 343.
548 THE COIN ACT.
14. Every one who, with intent to defraud, tenders, utters or puts
off', as or for any current gold or silver coin, any coin not being such
current gold or silver coin, or any medal, or piece of metal or mixed
metals, resembling, in size, figure and color, the current coin as or for
which the same is so tendered, uttered or put off, such coin, medal or
piece of metal or mixed metals so tendered, uttered or put off, being
of less value than the current coin as or for which the same is so ten-
dered, uttered or put off, is guilty of a misdemeanor, and liable to one
year's imprisonment— 32-33 F., c. 18, s. 13. 24-25 F, c. 99, s. 13,
Imp.
A person was convicted, under the above section, of
putting off, as and for a half sovereign, a medal of the same
size and colour, which had on the obverse side a head
similar to that of the Queen, but surrounded by the inscrip-
tion " Victoria, Queen of Great Britain," instead of "Vic-
toria Dei Gratia," and a round guerling and not square.
And no evidence was given as to the appearance of the
reverse side, nor was the coin produced to the jury ; and it
was held that there was sufficient evidence that the medal
resembled, in figure, as well as size and colour, a half
sovereign. — R. v. Robinson, L. & G. 604 ; the medal was
produced, but, in the course of his evidence, one of the
witnesses accidentally dropped it, and it rolled on the floor ;
strict search was made for it for more than half an hour,
but it could not be found.
15. Every one who falsely makes or counterfeits any coin resem-
bling or apparently intented to resemble or pass for any current copper
coin, or without lawful authority or excuse, the proof of which shall
lie on him, knowingly makes or mends, or begins or proceeds to make
or mend, or buys or sells, or has in his custody or possession, any
instrument, tool or engine adapted and intended for the counterfeiting
any current copper coin, or buys, sells, receives, pays or puts off, or
offers to buy, sell, receive, pay or put off, any false or counteifeit
coin, resembling or apparently intended to resemble or pass for any
current copper coin, at or for a lower rate of value than the same
imports or was apparently intended to import, is guilty of felony, and
liable to seven years' imprisonment— 32-33 F, c. 18, s. 14. 24-25 V.i
c. 99,*. 14, Imp.
THE COIN ACT. 549
16. Every one who tenders, utters or puts off any false or counter-
feit coin, resembling or apparently intended to resemble or pass for
any current copper coin, knowing tbe same to be false or counterfeit,
or bas in his custody or possession three or more pieces of false or
counterfeit coin, resembling or apparently intended to resemble or pass
for any current copper coin, knowing the same to be false or counter-
feit, with an intent to utter or put off the same, or any of them, is
guilty of a misdemeanor, and liable to one year's imprisonment. — 32-
33 F, c 18, s. 15. 24-25 F, c. 99, s. 15, Imp.
17. Every one defaces any current gold, silver or copper coin, by
stamping thereon any names or words, whether such coin is or is not
thereby diminished or lightened, and afterwards tenders the same, is
guilty of a misdemeanor, and liable to one year's imprisonment. — 32-
33 F, c. 18, s. 16. 24 25 F, c 99, s. 16, Imp.
18. Every one who tenders, utters or puts off any coin so defaced,
shall, on summary conviction before two justices of the peace, be
liable to a penalty not exceeding ten dollars; but no person shall
proceed for any such last mentioned penalty without the consent of
the Attorney General for the Province in which such offence is alleged
to have been committed.— 32-33 F, c. 18, s. 17, part. 24-25 F, c 99,
s. 17, Imp.
Indictment for defacing Coin. — one piece of
the current silver coin, called a half crown, unlawfully and
wilfully did deface, by then stamping thereon certain
names and words against the form — Arch-
hold, 748.
Prove that the defendant defaced the coin in question, by
stamping on it any names or words, or both. It is not
necessary to prove that the coin was thereby diminished or
lightened. There must be defacing and tendering, to bring
the offence within section 17.
19. Every one who makes or counterfeits any kind of coin not
being current gold or silver coin, but resembling or apparently in-
tended to resemble or pass for any gold or silver coin of any foreign
prince, state or country, is guilty of felony, and liable to seven years'
imprisonment.— 32-33* F, c. 18, s. 18. 24-25 F, c. 99, s. 18, Imp.
20. Every one who, without lawful authority or excuse, the proof
550 THE COIN ACT.
whereof shall lie on him, brings or receives into Canada any such
false or counterfeit coin, resembling or apparently intended to resem-
ble or pass for any gold of silver coin of any foreign prince, state or
country, not being current coin, knowing the same to be false or
counterfeit, is guilty of felony, and liable to seven years' imprison-
ment.—32-33 V., c. 18, s. 19. 24-25 V., c. 99, s. 19, Imp.
21. Every one who tenders, utters or puts off any such false or
counterfeit coin, resembling or apparently intended to resemble, or
pass for any gold or silver coin of any foreign prince, state or country
not being current coin, knowing the same to be false or counterfeit,
is guilty of a misdemeanor, and liable to fix months' imprisonment:
2. Every one who, having been convicted of any such offence, after-
wards commits the like offence of tendering, uttering or putting off
any such false or counterfeit coin, as aforesaid, knowing the same to
be false or counterfeit, is guilty of a misdemeanor, and liable to im-
prisonment for any term less than two years ;
3. Every one who, having been twice convicted of any such offence,
afterwards commits the like offence of tendering, uttering or putting
off any such false or counterfeit coin, as aforesaid, knowing the same
to be false or counterfeit, is guilty of felony, and liable to seven years'
imprisonment.— 32-33 V., c. 18, ss. 20 and 21. 24-25 V., c 99, ss. 20-
21, Imp.
See sec, 207 of Procedure Act.
22. Every one who, without lawful authority or excuse, the proof
whereon shall lie on him, has in his possession or custody any forged,
false or counterfeit piece or coin, counterfeited to resembleany foreign
gold or silver coin described in the three sections next preceding,
knowing the same to be false or counterfeit coin, is guilty of a misde-
meanor, and liable to three years' imprisonment. — 32-33 V., c. 18,
s. 22. 24-25 V., c 99, s. 23, Imp.
23. Every one who falsely makes or counterfeits any kind of coin,
not being current coin, but resembling or apparently intended to
resemble or pass for any copper coin, or any other coin made of any
metal or mixed metals, of less value than the silver coin of any foreign
prince, state or country, is guilty of a misdemeanor, and liable, for
the first offence, to one year's imprisonment ; and for any sub-
sequent offence, to seven years' imprisonment. — 32-33 V., c. 18, s. 23.
24-25 F.,c.99, s. 22, Imp.
The remarks under the first part of the Act are all
THE COIN ACT. 551
applicable here, the enactments in those sections being the
same, and repeated, to apply to foreign coin not current
here.
See R. v. Tierney, 29 U. C. Q. B. 181.
24. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, —
(a.) Knowingly makes or mends, or begins or proceeds to make or
mend, or buys or sells, or has in his custody or possession any pun-
cheon, counter puncheon, matrix, stamp, die, pattern or mould, in
or upon which there is made or impressed, or which will make or
impress, or which is adapted and intended to make or impress the
figure, stamp or apparent resemblance of both or either of the sides
of any current gold or silver coin, or of any coin of any foreign
prince, state or country, or any parts of both or either of such sides, —
(6.) Makes or mends, or begins or proceeds to make or mend or
buys or sells, or has in his custody or possession any edger, edging or
other tool, collars, instrument or engine adapted and intended for the
marking of coin round the edges with letters, grainings, or other
marks or figures, apparently resembling those on the edges of any
such coin as in this section aforesaid, knowing the same to be so
adapted and intended as aforesaid, or —
(c.) Makes or mends or begins or proceeds to make or mend, or
buys or sell, or has in his custody or possession, any press for coinage,
or any cutting engine for cutting by force of a screw or of any other
contrivance, round blanks out of gold, silver or other metal or mix-
ture of metals or any other machine, knowing such press to he a press
for coinage, or knowing such engine or machine to have been used or
to be intended to be used for or in order to the false making or coun-
terfeiting of any such coin as in this section aforesaid, —
is guilty of felony, and liable to imprisonment for life. — 32-33 V.,
c. 18, s. 24. 24-25 V., c. 99, s. 24, Imp.
Indictment for making a puncheon for coining. —
one puncheon, in and upon which there was
then made and impressed the figure of oue of the sides,
that is to say, the head side of a piece of the current
silver coin, commonly called a shilling, knowingly, falsely,
552 THE COIN ACT.
deceitfully and feloniously, and without lawful autho-
rity or excuse, did make, against the form — Arch-
bold.
Prove that the defendant made a puncheon, as stated in
the indictment ; and prove that the instrument in ques-
tion is a puncheon included in the statute. The words
in the statute " upon which there shall be made or
impressed " apply to the puncheon which being convex
bears upon it the figure of the coin ; and the words
" which will make or impress " apply to the counter pun-
cheon, which being concave will make and impress.
However, although it is more accurate to describe the
instruments according to their actual use, they may be
described either way. — R. v. Lennard, 1 Leach, 90. It
is not necessary that the instrument should be capable of
making an impression of the whole of one side of the
coin, for the words "or any part or parts" are intro-
duced into this statute, and, consequently the difficulty in
M. v. Sutton, 2 Str. 1074, where the instrument was
capable of making the sceptre only cannot now occur.
And on an indictment for making a mould " intended to
make and impress the figure and apparent resemblance of
the obverse side " of a shilling, it is sufficient to prove
that the prisoner made the mould and a part of the im-
pression, though he had not completed the entire impres-
sion.— R. v. Foster, 7 G. & P. 495. It is not necessary
to prove under this branch of statute the intent of the
defendant : the mere similitude is treated by the Legis-
lature as evidence of the intent ; neither is it essential
to show that money was actually made with the instru-
ment in question. — R. v. Ridgely, 1 East, P. G 171.
The proof of lawful authority or excuse, if any, lies on
the defendant. Where the defendant employed a die-
THE COIN ACT. 553
sinker to make, for a pretended innocent purpose, a die
calculated to make shillings ; and the die-sinker, suspect-
ing fraud, informed the authorities at the mint, and under
their directions made the die for the purpose of detecting
prisoner ; it was held that the die-sinker was an innocent
agent and the defendant was rightly convicted as a prin-
cipal— B. v. Bannen, 2 Moo. C. C. 309.
The making and procuring dies and other materials,
with intent to use them in coining Peruvian half-dollars
in England, not in order to utter them here, but by way of
trying whether the apparatus would answer, before sending
it out to Peru, to be there used in making the counterfeit
coin for circulation in that country, was held to be an
indictable misdemeanor at common law. — B. v. Roberts,
Dears. 539; Archbold, 760 ; 1 Burn, 814; 1 Buss. 100.
A galvanic battery is a machine within this section. — B. v.
Grover, 9 Cox, 282.
Indictment for having a puncheon in possession. —
one puncheon in and upon which there was then
made and impressed the figure of one of the sides, that
is to say, the head side of a piece of the current silver
coin commonly called a shilling, knowingly, falsely, de-
ceitfully and feloniously, and without lawful authority or
excuse, had in his custody and possession, against the
form — A rchbob 1.
An indictment which charged that the dofendant felo-
niously had in his possession a mould " upon which said
mould was made and impressed the figure and apparent
resemblance " of the observe side of a sixpence, was held bad
on demurrer, as not sufficiently showing that the impres-
sion was on the mould at the time when he had it in his
possession. — B. v. Bichmond, 1 0. £ K. 2-40.
As to evidence of possession, see sect. 2, ante. — B. v.
554 THE COIN ACT.
Rogers, 2 Moo. C. G. 85. — The prisoner had occupied a
house for about a month before the police entered it, and
found two men and two women there, one of whom was
the wife of the prisoner. The men attacked the police,
and the women threw something into the fire. The police
succeeded, however, in preserving part of what the women
threw away, which proved to be fragments of a plaster-of-
Paris mould of a half crown. The prisoner came in
shortty afterwards, and, on searching the house, a quantity
of plaster-of-Paris was found up-stairs. An iron ladle
and some fragments of plaster-of-Paris moulds were also
found. It was proved that the prisoner, thirteen days
before the day in question, had passed a bad half-crown,
but there was no evidence that it had been made in the
mould found by the police. He was afterwards tried and
convicted for uttering the base half-crown. It was held
that there was sufficient evidence to justify the conviction,
and that, on a trial for felony, other substantive felonies
which have a tendency to establish the scienter of the
defendant may be proved for that purpose. — R. v. Weeks,
L. & C. 18. In R. v. Harvey, 11 Cox, 662, it was held :
1. That an indictment under this section is sufficient if it
charges possession without lawful excuse, as excuse would
include authority ; 2. That the words " the proof whereof
shall lie on the accused " only shift the burden of proof,
and do not alter the character of the offence ; 3. That the
fact that the Mint authorities, upon information forwarded
to them, gave authority to the die maker to make the die,
and that the police gave permission to him to give the die
to the prisoner, who ordered him to make it, did not cons-
titute lawful authority or excuse for prisoner's possession
of the die ; 4. That, to complete the offence, a felonious
intent is not necessary ; and, upon a case reserved, the
conviction was affirmed.
THE COIN ACT. 555
Indictment for making a collar. — one collar
adapted and intended for the marking of coin round the
edges with grainings apparently resembling those on the
edges of a piece of the current gold coin called a sovereign,
falsely, deceitfully and feloniously, and without lawful
authority or excuse, did make, he the said J. S. then
well knowing the same to be so adapted and intended as
aforesaid, against the form — A rchbold, 761.
It must be proved, upon this indictment that the de-
fendant knew the instrument to be adapted and intended
for the marking of coin round the edges.
It must be remarked that the said clause expressly
applies to tools for making foreign coin, as well as current
coin.
25. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, knowingly conveys out of any of Her
Majesty's mints into Canada, any puncheon, counter puncheon,
matrix, stamp, die, pattern, mould, edger, edging or other tool, collar,
instrument, press or engine, used or employed in or about the coining
of coin, or any useful part of any of the several articles aforesaid, or
any coin, bullion, metal or mixture of metals, is guilty of felony and
liable to imprisonment for life.— 32-33 V., c. 18, s. 25. 24-25 F., c.
99, s. 25, Imp.
26. If any coin is tendered as current gold or silver coin to any
person who suspects the same to be diminished otherwise than by
reasonable wearing, or to be counterfeit, such person may cut, break,
bend or deface such coin, and if any coin so cut, broken, bent or
defaced appears to be diminished otherwise than by reasonable
wearing, or to be counterfeit, the person tendering the same shall
bear the loss thereof ; but if the same is of due weight, and appears
to be lawful coin, the person cutting, breaking, bendingor defacing the
same, shall be bound to receive the same at the rate for which it
was coined :
2. If any dispute arises whether the coin so cut, broken, bent or
defaced, is diminished in manner aforesaid, or counterfeit, it shall
be heard and finally determined in a summary manner by any justice
of the peace, who may examine, upon oath, the parties as well as any
556 THE COIN ACT.
other person, for the purpose of deciding such dispute, and if he enter-
tains any doubt in that behalf, he may summon three persons, the
decision of a majority of whom shall be final:
3. Every officer employed in the collection of the revenue in Canada
shall cut, break or deface, or cause to be cut, broken or defaced,
every piece of counterfeit or unlawfully diminished gold or silver
coin which is tendered to him in payment of any part of such revenue
in Canada.— 32-33 V„ c. 18, s. 26. 24-25 V., c. 99 s. 26, Imp.
The words in italics are not in the Imperial Act.
27. Every offence of falsely making or counterfeiting any coin, or
of buying, selling, receiving, tendering, uttering or putting off, or of
offering to buy, sell, receive, pay, utter or put off, any false or coun-
terfeit coin, against the provisions of this Act, shall be deemed to
be complete, although the coin so made or counterfeited, or bought
sold, received, paid, tendered, uttered or put off, or offered to be
bought, sold, received, paid, tendered, uttered or put off, was not
in a fit state, to be uttered, or the counterfeiting thereof was not
finished or perfected. H2-33 V., c. 18, s. 32. 24-25 V., c. 99, s. 30, Imp.
The word in italics is not in the Imperial Act.
MANUFACTURE AND IMPORTATION OF UNCURRENT
COPPER COIN.
28. Every one who manufactures in Canada any copper or brass
coin, or imports into Canada any copper or brass coin, other than
current copper coin, with the intention of putting the same into circu-
lation as current copper coin, shall, on summary conviction, be liable
to a penalty not exceeding twenty dollars for every pound Troy of the
weight thereof; and all such copper or brass coin so manufactured or
imported shall be forfeited to Her Majesty, for the public uses of
Canada.— 31 V., c. 47, ss. 1 and 2.
29. Any two or more justices of the peace, on the oath of a cre-
dible person, that any copper or brass coin has been unlawfully man-
ufactured or imported, shall cause the same to be seized and detained,
and shall summon the person in whose possession the same is
found, to appear before them ; and if it appears to their satisfaction,
on the oath of a credible w'tness, other than the informer, that such
copper or brass coin has been manufactured or imported in violation
of this Act, such justices shall declare the same forfeited, and shall
place the same in safe keeping to await tbe disposal of the Governor
General, for the public uses of Canada. — 31 V., c. 47, s. 3.
THE com ACT. 557
30. If it appears, to the satisfaction of such justices, that the person
in whose possession such copper or brass coin was found, knew the
same to have been so unlawfully manufactured or imported, they may
condemn him to pay the penalty aforesaid with costs, and may cause
him to be imprisoned for a term not exceeding two months, if such
penalty and costs are not forthwith paid. — 31 F, c. 47, s. 4.
31. If it appears, to the satisfaction of such justices, that the person
in whose possession such copper or brass coin was found was not
aware of it having been so unlawfully manufactured or imported, the
penalty may, on the oath of any one credible witness, other than the
plaintiff, be recovered, from the owner thereof, by any person who sues
for the same in any court of competent jurisdiction. — 31 F., c. 47, *. 5.
32. Any officer of Her Majesty's customs may seize any copper or
brass coin imported or attempted to be imported into Canada in viola-
tion of this Act, and may detain the same as forfeited, to await the
disposal of the Governor General, for the public uses of Canada. — 31
F, c. 47, s.6.
33. Every one who utters, tenders or offers in payment any copper
or brass coin, other than current copper coin, shall forfeit double the
nominal value thereof :
2. Such penalty may be recovered, with costs, in a summary man-
ner, on the oath of one credible witness, other than the informer,
before any justice of the peace, who, if such penalty and costs are not
forthwith paid, may cause the offender to be imprisoned for a term not
exceeding eight days. — 31 J", c. 47, ss. 7 and 8.
34. A moiety of any of the penalties imposed by any of the five
sections next preceding, but not the copper or brass coin forfeited
under the provisions thereof, shall belong to the informer or person
who sues for the same, and the other moiety shall belong to Her
Majesty, for the public uses of Canada. — 31 F, c. 47, s. 9.
CHAPTER 168.
AN ACT RESPECTING MALICIOUS INJURIES TO
PROPERTY.
H
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
1. In this Act, unless the context otherwise requires, the expression
" cattle" includes any horse, mule, ass, swine, sheep, or goat, as well
as any neat cattle or animal of the bovine species, and whatever is the
age or sex of the animal, and whether castrated or not, and by what-
ever technical or trivial name it is known, and shall apply to one ani-
mal as well as to many— 32-33 V., c. 22, s. 44. 40 V., c. 29, s. 2.
This is the same definition of these words as is given
in the Larceny Act, sec. 2.
INJURIES BY FIRE TO BUTDLINGS AND GOODS THEREIN.
2. Every one who unlawfully and maliciously sets fire to any
church, chapel, meeting-house or other place of divine worship, is
guilty of felony and liable to imprisonment for life — 32-33 V., c. 22,
5.1. 24-25 V., c 97, s, 1, Imp.
Indictment. — The Jurors for Our Lady the Queen,
upon their oath present, that J. S. on the in the
year feloniously, unlawfully and maliciously did
set fire to a certain church, situate at in the parish
of in the district of against the form of the
statute in such case made and provided, and against the
peace of Our Lady the Queen, her crown and dignity.
Local description necessary. M. v. Woodward, 1 Moo.
a a 323.
Though it is not necessary to prove malice against the
owner, yet the indictment must allege the act to have
been done " unlawfully and maliciously." If a statute
MALICIOUS INJURIES TO PROPERTY. 559
makes it criminal to do an act unlawfully and maliciously,
an indictment must state it to have been done so ; stating
that it was done feloniously, voluntarily and maliciously,
is not enough. — R. v. Turner, 1 Moo. C. C. 239 ; R. v.
Lewis, 2 Russ. 1067.
The definition of arson at common law is as follows :
arson is the malicious and wilful burning the house of
another, and to constitute the offence there must be an
actual burning of some part of the house, though it is not
necessary that any flames should appear. — 3 Burn, 768.
But now the words of the statute are set fire to, merely ;
and, therefore, it is not necessary in an indictment to aver
that the house was burnt, nor need it be proved that the
house was actually consumed. But under the statute, as
well as at common law, there must be an actual burning of
some part of the house ; a bare intent or attempt to do it is
not sufficient. But the burning or consuming of any part
of the house, however trifling, is sufficient, although the
fire be afterwards extinguished. Where on an indict-
ment it was proved that the floor of a room was scorched ;
that it was charred in a trifling way ; that it had been at a
red heat but not in a blaze, this was held a sufficient burn-
ing to support the indictment. But where a small faggot
having been set on fire on the boarded floor of a room, the
boards were thereby scorched black but not burnt, and no
part of the wood was consumed, this was held not suffi-
cient.— A rchbold.
The time stated in the indictment need not be proved as
laid ; if the offence be proved to have been committed at
any time before or after, provided it be some day before
the finding of the indictment by the grand jury, it is
sufficient. Where the indictment alleged the offence to
have been committed in the night time and it was proved
560 MALICIOUS INJURIES TO PROPERTY.
to have been committed in the day time, the judges held
the difference to be immaterial. The parish is material, for
it is stated as part of the description of the house burnt.
Wherefore, if the house be proved to be situate in another
parish the defendant must be acquitted, unless the variance
be amended. If a man intending to commit a felony, by
accident set fire to another's house, this, it should seem,
would be arson. If intending to set fire to the house of
A. he accidentally set fire to that of B., it is felony. Even
if a man by wilfully setting fire to his own house, burns
also the house of one of his neighbors it will be felony ;
for the law in such a case implies malice, particularly if the
party's house were so situate that the probable conse-
quence of its taking fire was that the fire would commu-
nicate to the houses in its neighborhood. And generally
if the act be proved to have been done wilfully, it may
be inferred to have been done maliciously, unless the
contrary be proved. — Archbold ; R. v. Tivey, 1 G. & K.
704 ; R. v. Philp, 1 Moo. G. G. 263.
It is seldom that the wilful burning by the defendant,
can be made out by direct proof; the jury, in general,
have to adjudicate on circumstantial evidence. Where a
house was robbed and burnt, the defendant being found
in possession of some of the goods which were in the house
at the time it was burnt, was admitted as evidence
tending to prove him guilty of the arson. So where the
question is whether the burning was accidental or wilful,
evidence is admissible to show that on another occasion,
the defendant was in such a situation as to render it pro-
bable that he was then engaged in the commission of the
like offence against the same property. But on a charge
of arson, where the question was as to the identity of the
prisoner, evidence that a few days previous to the fire in
MALICIOUS INJURIES TO PROPERTY. 561
question, another building of the prosecutor's was on
fire and that the prisoner was then standing by with a
demeanor which showed indifference or gratification, was
rejected. — Archbold.
Upon an indictment for any offence mentioned in this
chapter (except the attempts specially enacted to be felo-
nies) the jury may, under s. 183, Procedure Act, convict
the prisoner of an attempt to commit the same, and there-
upon he may be punished in the same manner as if he
had been convicted on an indictment for such attempt. —
2RiM8. 1054.
SETTING FIRE TO A DWELLING-HOUSE, ANY PERSON BEING
THEREIN.
3. Every one who unlawfully and maliciously sets fire to any
dwelling-hou~e, any person being therein, is guilty of feiony, ami
liable to imprisonment for life. — 32-33 PL, c. 22, s- 2. 24-25 I", c. &7
s. 2, Imp.
This offence was formerly punishable with death.
As to verdict for an attempt to commit the offence
charged upon an indictment for the offence, see Procedure
Act, sect. 183.
J lictment. — feloniously, unlawfully and mali-
ciously did set fire to a certain dwelling-house of J. N.,
situate in the parish of in the district of
one J. L. and M. his wife then, to wit, at the time of the
committing of the felony aforesaid, being in the said
dwelling-house; against the form
Local description necessary as under sec. 2
In this section, no mention is made of the intent with
which the act is done ; and it seems it is not necessary to
show that the prisoner knew that any person was in the
house. It must be shown that some one was in the house
at the time the house caught fire ; and where a person was
MM
562 MALICIOUS INJURIES TO PROPERTY.
in a house at the time the prisoner set fire to an outhouse,
but left the house before the fire reached it, it was held
that the offence was not proved within this section. — R. v.
Warren, 1 Cox, 68 ; R. v. Fletcher, 2 C. & K. 215.
Under the repealed statute, a common gaol was held to
be a dwelling-house ; Donnavan's Case, 1 Leach, 69 ;
but a mere lock-up where persons are never detained more
than a night or two was held not to be a house. — R. v.
Connor, 2 Cox, 65.
A building intended for a dwelling-house, but used as a
place to deposit straw, etc., is neither a house, out -house
nor barn. — Elsemore v. St. Briavels, 8 B. & C. 461. A
dwelling-house must be one in which a person dwells; R
v. Allison, 1 Cox, 24 ; but temporary absence is not suffi-
cient to take the building out of the protection of the
statute. — R. v. Kimbrey, 6 Cox, 464. A building not
intended for a dwelling-house, but slept in by some one
without the leave of the owner, and a cellar under a
cottage separately occupied, were held not to be houses. — R.
v. England, 1 C. & K. 533 ; Anon. 1 Lewin 8.
What is understood by the house. This extends at
common law not only to the very dwelling-house, but to
all out-houses which are parcel thereof, though not adjoin-
ing thereto, nor under the same roof. — 2 East, P. C. 1020.
SETTING FIRE TO A HOUSE, OUT-HOUSE, MANUFACTORY,
FARM BUILDING.
4. Every one who unlawfully and maliciously sets fire to any
house, stable, coach-house, out-house, warehouse, office, shop, mill,
malt-house, hop-oast, barn, storehouse, granary, hovel, shed or fold,
or to any farm building, or to any budding or erection used in farming
land, or in carrying on any trade or manufacture or any branch
thereof, whether the same is then in the possession of the offender, or
in the possession of any other person, with the intent thereby to
injure or defraud any person, is guilty of felony, and liable to impris-
onment for life.— 32-33 V., c. 22, s. 3. 35 V., c. 34, s. 1 . 24-25 V., c.
97, s. 3, Imp.
MALICIOUS INJURIES TO PROPERTY. 563
See sect. 183, Procedure Act, as to verdict for an attempt
to commit the offence charged, in certain cases, upon an
indictment for the offence.
Indictment. — feloniously, unlawfully, and mali-
ciously did set fire to a certain dwelling-house of J. N.,
situate with intent thereby then to injure the
said J. N"., (or to defraud a certain insurance company
called) against the form
Local description necessary as under sec. 2.
.A was indicted for setting fire to an out-house. The
building set on fire was a thatched pigsty, situate in a yard
in the possession of the prosecutor, into which yard the
back door of his house opened, and which yard was bound-
ed by fences and by other buildings of the prosecutor,
and by a cottage and barn which were lent to him by a
tenant, but which did not op.n into this yard : Held, that
this pigsty was an out-house within the repealed statute.
— R. v. Jones, 2 Moo. C. C. 308.
A. was indicted for having set fire to a building twenty-
four feet square, the sides of which were composed of wood
with glass windows ; it was roofed and was used by a
gentleman, who built houses on his own property, for the
purpose of disposing of them, as a storehouse for seasoned
timber, as a place of deposit for tools, and as a place where
timber was prepared for use : Held, that this was a shed,
and also an erection used in carrying on trade. — R. v.
Amos, 2 Den. 65.
Burning a stable is not supported by proof of burning a
shed, which has been built for and used as a stable origi-
nally, but has latterly been used as a lumber shed only. —
R. v. Colley, 2M.& Rob. 475.
An unfinished structure intended to be used as a house
is not a house within the meaning of this section. — R. v.
Edgell, 11 Cox, 132.
564 MALICIOUS INJURIES TO PEOPEKTY.
An indictment under this section, for setting fire to a
house, shop, etc., need not allege the ownership of the
house. The evidence in support of the intent to injure
was that the prisoner N. was under notice to quit, and a
week before the fire was asked to leave but did not. Of
the intent to defraud, the evidence was that in 1867 he
called on an agent about effecting an assurance, and that
in 1871, he called on him again, and said he had come
to renew his policy for £500, and paid ten shillings : Held,
that the evidence was sufficient to prove the intent to
injure the owner of the house, and the intent to defraud
the insurance company ; though the policy of insurance
was not produced, there was sufficient evidence of it by
the defendant's implied admission of its existence by say-
ing he wished to renew his policy. — R. v. Newboult, 12
Cox, 148.
Malice against owner is unnecessary; see sect. 60, post;
and intent to injure or defraud any particular person need
not be stated in the indictment, nor proved on the trial.
In Farrington's Case, R. v. R. 207, no motive of ill-
feeling whatsoever against the owner of the property burnt
could be proved against the prisoner ; he was proved to be
a harmless, inoffensive man ; but upon a case reserved it
was held that an injury to the burnt building being the
necessary consequence of setting fire to it, the intent to
injure might be inferred, for a man is supposed to intend
the necessary consequence of his own act.
Under the statute, it is immaterial whether the build-
ing, house, etc., be that of a third person or of the
defendant himself ; but in the latter case, the intent to,
defraud cannot be inferred from the act itself, but it must
be proved by other evidence. In R. v. Kitson, Dears. 187,
the prisoner was indicted for arson, in setting fire to his
MALICIOUS INJURIES TO PROPERTY. 565
own house, with intent to defraud an insurance office.
Notice to produce the policy was served too late on the
defendant, and it was held that secondary evidence of the
policy was not admissible. " But it must not, however
be understood, said Jervis, C. J., that it is absolutely
necessary in all cases to proluce the policy, but the intent
to defraud alleged in the indictment must be proved by
proper evidence."
A married woman cannot be indicted for setting fire to
the house of her husband with intent to injure him. — R.
v. March, 1 Moo. C. C. 182.
See remarks under sects. 2 and 3, ante.
An indictment charging a prisoner with having felo-
niously and maliciously set fire to a barn containing hay,
etc., according to the form contained in the schedule to the
act 32-33 V., c. 29, is good, and it is not necessary to
allege an intent to injure or defraud the prosecutor.
Sec. 32 of 32-33 V., c. 30 is directory, and a statement
made by a prisoner as provided for by that act may be
used in evidence against hi:n although the justice has not
complied with the provisions of that section, if it appeared
that the prisoner was not induced to make the statement
by any promise or threat. — The Queen v. Soucie, 1 P. <£
B. (X.B.)eih
SETTING FIRE TO ANY RAILWAY STATION, ETC.
o. Every one who unlawfully and maliciously sets fire to any
station, engine-house, warehouse or other building, belonging or
appertaining to any railway, port, dock or harbor, or to any canal or
other navigable water, is guilty of felony, and liable to imprisonment
for life.— 32-33 F., c 22. s. 4. 24-25 V.. c. 97, s. 4, Imp.
The words " or other navigable water " replace the
words "or other navigation." in the Imperial Act.
See remarks under sees. 2 and 3, ante.
566 MALICIOUS INJURIES TO PROPERTY.
Indictment — Berkshire (to wit). The Jurors for our
Lady the Queen upon their oath present, that on the first
day of May, in the year of our Lord 1852, at the parish of
Goring, in the county of Berks, A. B. feloniously, unlaw-
fully, and maliciously did set fire to a certain station
(any station, engine-house, warehouse, or other building)
the property of the Great Western Kail way Company, there
situate, then and there, belonging (belonging or apper-
taining) to a certain railway there, called " The Great
Western Railway."
SETTING FIRE TO THE QUEEN'S DOCK- YARDS, SHIPS, ETC.
6. Every one who unlawfully and maliciously sets on fire or
burns, or otherwise destroys or causes to be set on fire or burnt, or
otherwise destroyed, any of Her Majesty's ships or vessels of war,
whether afloat or building, or begun to be built in any of Her
Majesty '8 dock-yards, or building or repairing by contract in any
private yard, for the use of Her Majesty's or any of Her Majesty's
arsenals, magazines, dock-yards, rope-yards, victualling offices, or
any of the buildings erected therein or belonging thereto, or any timber
or material there placed fur building, repairing or fitting out of ships
or vessels, or any of Her Majesty's military, naval or victualling
stores or other ammunition of war, or any place or places where any
such military, naval, or victualling stores, or other ammunition of war,
are kept, placed or deposited, is guilty of felony, and liable to impris-
onment for life.— 32-33 V., c. 22, s. 5.
This clause is taken from 12 Geo. 3, c. 24, s. 1, Imp. See
ante, remarks and form of indictment under sees. 2 and 3.
SETTING FIRE TO ANY PUBLIC BUILDING.
7. Every one who unlawfully and maliciously sets fire to any
building, other than such as are in this Act before mentioned, belong-
ing to Her Majesty or to any county, riding, division, city, town,
village, parish or place, or belonging to any university or college, or
hall of any university, or to any corporation, or to any unincorporated
body or society of persons, associated together for any lawful purpose,
or devoted or dedicated to public use or ornament, or erected or main-
tained by public subscription or contribution, is guilty of felony, and
liable to imprisonment for life.— 32-33 V., c. 22, *. 6. 24-25 V., c. 97,
s. 5, Imp.
MALICIOUS INJURIES TO PROPERTY. 567
Greaves says : " This clause is new, and an extremely great
amendment of the law. Before this act passed, there was
no statute applicable to the burning of any public build-
ing, however important, unless it could be held to fall
within the term " house." It would be easy to point out
such buildings, the burning of which would have been
looked upon as a national calamity. This section therefore
has been introduced to protect all such buildings, as well
as all the others specified in it.''
See remarks under sees. 2 and 3, ante.
SETTING FIRE TO ANY OTHER BUILDING.
8. Every one who unlawfully and maliciously sets fire to any
building, other than such as are in this Act before mentioned, is
guilty of felony, and liable to fourteen years' imprisonment. — 32-33
V., ft 22, s. 7. 24-25 V., c. 97, s. 6, Imp.
Greaves says : " This clause is new. It will include
every building not falling within any of the previous sec-
tions of the act. It will include ornamental buildings in
parks and pleasure grounds, hot houses, pineries, and all
those buildings which not being within the curtilage of a
dwelling-house, and not falling within any term previously
mentioned, were unprotected before this act passed. The
term ' building' is no doubt very indefinite but it
was thought much better to adopt this term, and leave it
to be interpreted as each case might arise, than to attempt
to define it, as any such attempt would probably have
failed in producing any expression more certain than the
term ' building ' itself."
In R. v. Edgell, 11 Cox, 132, it was doubted whether an
unfinished structure intended to be used as a house was a
building within this section. The point was not deter-
mined.
But in R. v. Manning, 12 Cox, 106, upon a case reserved,
568 MALICIOUS INJURIES TO PROPERTY.
it was held that an unfinished dwelling-house of which the
external and internal walls were built, and the roof covered
in, and a considerable part of the flooring laid, and the walls
and ceilings prepared for plastering, is a building, within
this section. In this case, Lush, J., left it to the jury
whether as a question of fact the erection was a building,
and the Court of Crown cases reserved seemed to be of
opinion that this had been correctly done. See remarks
under sees. 2 and 3, ante. See R. v. Labadie, 32 U. Q.
Q. B. 429 ; R. v. Greenwood, 23 U. G Q. B. 250.
Defendant was charged with having set fire to a building,
the property of one J. H., " with intent to defraud." The case
opened by the crown was that the prisoner intended to
defraud several insurance companies, but the legal proof of
the polices was wanting, and an amendment was allowed by
striking out the words "with intent to defraud." The
evidence showed that several persons were interested as
mortgagees of the building, a large hotel, and J. H. as
owner of the equity of redemption. It was left to the
jury to say whether the prisoner intended to injure any
of those interested. They found a verdict of guilty.
Held, that the amendment was authorised and proper,
and the conviction was warranted by the evidence.
The indictment in such a case is sufficient without alleg-
ing any intent, tbere being no such averment in the
statutory form; but an intent to injure or defraud must be
shown on the trial. — R. v. Cronin, 36 U. G. Q. B. 342.
SETTING FIRE TO GOODS IN ANY BUILDING.
9. Every one who unlawfully and maliciously sets fire to any
matter or thing, being in, against or under any building, under such
circumstances that, if the building were thereby set fire to, the offence
would amount to felony, is guilty of felony, and liable to fourteen
years' imprisonment. — 32-33 V., c. 22, s. 8. 24-25 V-, c. 97, s. 7, Imp.
MALICIOUS DTJTEIES TO PKOPERTY. 569
Greaves says : The terms " under such circumstances
that if the building were thereby set fire to the offence
would amount to felony " were advisably substituted in-
stead of the terms used (before) in consequence of the
case of R. v. Lyons, 1 Bell, C. C. 38. Some of the enact-
ments as to setting fire to buildings, ships, etc., make an
intent to injure or defraud necessary, but others do not,
and the terms in question were adopted in order to include
both categories ; so that if goods are set fire to in a build-
ing where an intent to injure or defraud is necessary to
constitute the offence of the setting fire to such building
(as in the cases included in sect. 3), the case will fall within
this clause ; as well as where no intent is necessary to
constitute the offence of setting fire to the building in which
the goods are set fire to (as in the case3 included in sees.
4, 5, 6, 7). In an indictment under this clause, where no
intent is necessary to constitute the offence of setting fire
to the building in which the goods are set fire to, it will be
sufficient to allege the setting fire to the goods in that
building ; but where an intent to injure or defraud is neces-
sary to constitute the offence of setting fire to the build-
ing it would seem necessary to allege in addition an intent
to injure or defraud as the case may be ; and the evidence
in the former case will suffice, if it prove the setting fire to
the goods in the building, but in the latter case, it must
also be sufficient to satisfy the jury that the prisoner had
the intent alleged in the indictment.
Indictment. — feloniously, unlawfully and mali-
ciously did set fire to a certain heap of straw in a certain
building of J. N., situate at in the district of
against the form 3 Burn, 799. According to
Greaves, if the heap of straw was in a Jwuse (as under
sect. 3), the intent to injure or defraud should be added.
But see R. v. Heseltine, 12 Cox, 404, post.
570 MA.LICIOUS INJURIES TO PROPERTY.
Where the prisoners were indicted for setting fire to
letters in a post-office, divers persons being in the house,
it was held that there was no evidence of any intent, but it
was what is vulgarly called a lark, and even if the house
had been burned, they would not have been guilty. — R.
v. Batstone, 10 Cox, 20.
A person maliciously sets fire to goods in a house with
inteut-to injure the owner of the goods, but he had no mali-
cious intention to burn the house, or to injure the owner
of it. The house did not take fire, but would have done so
if the fire had not been extinguished : Held, that if the
house had thereby caught fire, the setting fire to it would
not have been within this section, as, under the circum-
stances, it would not have amounted to felony. — R. v. Child}
12 Cox, 64 ; R. v. Nattrass, 15 Cox, 73 ; R. v. Harris, 15
Cox, 75.
It is not necessnry in a count in an indictment laid
under this section to allege an intent to defraud, and it is
sufficient to follow the words of the section without sub-
stantively setting out the particular circumstances relied on
as constituting the offence. Evidence of experiments made
subsequently to the fire is admissible in order to show the
way in which the building was set fire to. — R. v. Heseltine,
12 Cox, 404.
As to verdict for an attempt to commit the offence
charged in certain cases, same as under sect. 2, ante.
See remarks under sects. 2 and 3, ante.
ATTEMPTING TO SET FIRE TO BUILDINGS.
10. Every one who, unlawfully and maliciously, b}7 any overt act,
attempts to set fire to any building, or any matter or thing in the next
preceding section mentioned, under such circumstances that if the
same were thereby set fire to the offender would be guilty of felony,
is guilty of felony, and liable to fourteen years' imprisonment. — 32-33
V., c. 22, s. 12. 24-25 F, c. 97, s. 8, Imp.
MALICIOUS INJURIES TO PROPERTY. 571
Indictment. — feloniously, unlawfully and mali-
ciously did attempt, by then (state the overt act) felo-
niously, unlawfully and maliciously to set fire to a certain
dwelling-house (building) of J. N, situate at the parish of
in the with intent thereby then to injure
the said J. X. against the form — Archbold.
The words " any building " are not to be read as con-
nected with the words " in the next preceding section men-
tioned."— Archbold, 518.
Lighting a match by the side of a stack with intent to
set fire to it is an attempt to set fire to it, because it is an
act immediately and directly tending to the execution of
the crime. — R. v. Taylor, 1 F.&F. oil. On an indict-
ment against two prisoners for attempting to set fire, one
prisoner had not assisted in the attempt, but had coun-
selled and encouraged the other ; both were convicted. —
B. v. Clayton, 1 C. &K. 128.
See R. v. Goodman, 22 U. C. C. P. 338.
SETTING FIRE BY NEGLIGENCE TO ANY FOREST, TREE, ETC.
11. Every one who, by such negligence as shows him to be reck-
less or wantonly regardless of consequences, or in violation of a muni-
cipal law of the locality, sets fire to any forest, tree, manufactured
lumber, square timber, logs or floats, boom, dam or slide on the Crown
domain, or land leased or lawfully held for the purpose of cutting
timber, or on private property, on any creek or river, or rollway,
beach or wharf, so that the same is injured or destroyed, is guilty of a
misdemeanor, and liable to two years' imprisonment :
2. If, in the opinion of the magistrate investigating any charge
under this section, the consequences have not been serious, he may,
in his discretion, dispose of the matter summarily, without sending
the offender for trial, by imposing a fine not exceeding fifty dollars, or
in default of payment, by the committal of the offender to prison for
any term not exceeding six months, with or without hard labor. — 32-
33 V., c. 22, ss. 9 and 10.
12. Every one who, unlawfully and maliciously, sets fire to any
572 MALICIOUS INJURIES TO PROPERTY.
forest, tree, manufactured lumber, square timber, logs or floats boom,
dam or slide, on the Crown domain, or on land leased or lawfully
held for the purpose of cutting timber, or on private property, or on
any creek, river, rollway, beach or wharf, so that the same is injured
or destroyed, is guilty of felony, and liable to fourteen years' impris-
onment— 32-33 V., c. 22, s. 11.
See sect. 183 of the Procedure Act, as to a verdict for
an attempt in certain cases.
These two clauses are not in the English statute. Both
apply to forest, tree, lumber, etc. ; but under the first, the
act must have been done carelessly, or iu contravention to
a municipal law, whilst under the second, it must have
been done unlawfully and maliciously.
Indictment under sect. 12 quashed, for want of the
words '* so as to injure or to destroy." R. v. Berthe, 16 0.
L. J. 251. Such an indictment bad, even after verdict. —
Rv.Bleau, 7 E. L. 571.
INJURIES BY EXPLOSIVE SUBSTANCES.
13. Every one who, unlawfully and maliciously, by the explosion
of gunpowder or other explosive substance, destroys, throws down or
damages the whole or any part of any dwelling-house, any person
being therein, or of any building, whereby the life of any person is
endangered, is guilty of felony, and liable to imprisonment for life. —
32-33 V., e. 22, s. 13. 24-25 V., c. 97, s. 9, Imp.
14. Every one who unlawfully and maliciously places or throws
in, into, upon, under, against or near any building, any gunpowder or
other explosive substance, with intent to destroy or damage any
building, or any engine, machinery, working tools, fixtures, goods or
chattels, whether or not any explosion takes place, and whether or
not any damage is caused, is guilfy of felony, and liable to fourteen
years' imprisonment.— 32-33 P., c. 22, s. 14. 24-25 V., c 97, s. 10, Imp.
Indictment for destroying by explosion part of a
dwelling-house, some person being therein. — felo-
niously, unlawfully, and maliciously did, by the explosion
of a certain explosive substance, that is to say, gunpowder,
MALICIOUS INJURIES TO PROPERTY. 573
destroy a certain part of the dwelling-house of J. N.,
situate one A. N. then being in the said dwelling-
house, against the form (Add counts for throwing
down and damaging part of the dwelling-house.) See
R. v. McGrath, 14 Cox, 598.
Prove that the defendant by himself or with others
destroyed or was present aiding and abetting in the des-
truction of some part of the dwelling-house in question, by
the explosion of gunpowder or other explosive substance
mentioned in the indictment. It is apprehended that a
destruction of some part of the freehold must be shown. —
R. v. Hcwdt, 9 C. <L- P. 437. It has been held that firing
a gun loaded with powder through the keyhole of the door
of a house, in which were several persons, and by which
the lock of the door was blown to pieces, is not within this
section. — R. v. Brown, 3 F. & F. 821. But Greaves is of
opinion that this case would bear reconsideration. — 2 Buss.
1045 note. Prove that it was the dwelling-house of J. N.,
and situate as described in the indictment. Prove that
the act was done maliciously, that is, wilfully and not by
accident. Trove also that N. was in the house at the
time. No intent need be laid or proved. — Archbold. In
R. v. Sheppard, 11 Cox, 302, it was held that, in order to
support an indictment under this section, it is not enough
to show simply that gunpowder or other explosive sub-
stance was thrown against the house, but it must also be
shown that the substance was in a condition to explode
at the time it was thrown, although no actual explosion
did result.
Indictment for blowing up a house, whereby life was
eri'l'tagered. — feloniously, unlawfully and mali-
ciously did, by the explosion of a certain explosive sub-
stance,, that is to say, gunpowder, destroy the dwelling-
574 MALICIOUS INJURIES TO PROPERTY.
house of J. N., situate whereby the life of one A.
N. was then endangered, against the form (Add
a count for damaging the house with a like consequence.)
Archhold.
Same proof as under last preceding indictment, and that
the life of A. N. was endangered by the defendant's act.
Indictment for throwing gunpowder into a house with
intent, etc. — feloniously, unlawfully and mali-
ciously did throw into the dwelling-house of J. N., situate
a large quantity, to wit, two pounds of a certain
explosive substance, that is to say, gunpowder, with intent
thereby then to destroy the said dwelling-house, against
the form (Add counts varying the statement of the
act, and also stating the intent to be to damage the house.)
— Archhold. See R. v. Sheppard, 11 Cox, 302, ante.
Prove as under sect. 13, and prove circumstances from
which the jury may infer the intent as laid.
Local description necessary in the indictment. — JR. v.
Woodward, 1 Moo. G. C. 323.
INJURIES TO BUILDINGS BY TENANTS.
15. Every one who, being possessed of any dwelling-house or other
building, or part of any dwelling-house or other building, held for
any term of years or other less term, or at will, or held over after the
termination of any tenancy, unlawfully and maliciously pulls down
or demolishes, or unlawfully and maliciously begins to pull down or
demolish the same or any part thereof, or unlawfully and maliciously
pulls down or severs from the freehold any fixture fixed in or to such
dwelling-house or building, or part of such dwelling-house or build-
ing, is guilty of a misdemeanor. — 32-33 V.,c. 22, s. 17. 24-25 V., c.
97, s. 13, Imp.
Indictment. — that on J. S. was possessed
of a certain dwelling-house, situate then held by
him the said J. S. for a term of years then unexpired ;
and that the said J. S. being so possessed as aforesaid, on
MALICIOUS INJURIES TO PROPERTY. 575
thf> day and year aforesaid did unlawfully and maliciously
pull down and demolish the said dwelling-house (or begin
to pull down or demolish the said dwelling-house or any
part thereof) against the form — Archbold.
Greaves says : " This clause is a very important im-
Drovement in the law of England, as tenants have very
frequently, especially when under notice to quit, wilfully
injured houses and buildings to a great extent. " Mr. Cox
says : " Malice is of the essence of this offence. It is not
enough that it be unlawfully done, there must be a design
to injure the owner. " This is clearly wrong by the
express terms of sect. 58, post, (60 of our statute). Mr.
Welsby perfectly correctly says " prove that the act was
done maliciously, that is wilfully and without any claim
or pretence of right to do it.*' No punishment for the
offence created by this section was inserted, because it
was thought that the common law punishment of fine or
imprisonment, or both, was the proper punishment. " By
the common law, when a fine is imposed, the offender may
be imprisoned till the fine is paid.
This section only applies to any dwelling-house or build-
i ng.but sect. 4, ante, provides for cases of setting fire to
any of the things therein mentioned, whether in the
offender's possession or not, and sect. 61, post, extends the
provisions of the act generally to all offenders, whether
in the possession of the property or not, if there be an
intent to injure or defraud. — 3 Burn. 775.
INJURIES TO MANUFACTURES, MACHINERY, ETC.
16. Every one who unlawfully and maliciousty cuts, breaks or
destroys, or damages, with intent to destroy or to render useless, any
goods or article of silk, woollen, linen, cotton, hair, mohair or alpaca,
or of any one or more of those materials mixed with each other, or
mixed with any other material, or any framework-knitted piece,
576 MALICIOUS INJURIES TO PROPERTY.
stocking, hose or lace, being in the loom or frame, or on any machine
or engine, or on the rack or tenters, or in any stage, process or pro-
gress of manufacture, or unlawfully and maliciously cuts, breaks, or
destroys or damages with intent to destroy or render useless, any
warp or shute of silk, woollen, linen, cotton, hair, mohair or alpaca, or
of any oneor more of those materials mixed with each other, or mixed
with any other material, or unlawfully and maliciously cuts, breaks or
destroys or damages with intent to destroy or render useless, any loom,
frame, machine, engine, rack, tackle, tool or implement, whether fixed
or movable, prepared for or employed in carding, spinning, throwing,
weaving, fulling, shearing or otherwise manufacturing or preparing
any such goods or articles, or by force enters into any house, shop,
building or place, with intent to commit any of the offences in this
section mentioned, is guilty of felony, and liable to imprisonment for
life.— 32-83 V., c 22, s. 18. 24-25 V.,c. 97, s. 14, Imp.
17. Every one who unlawfully and maliciously cuts, breaks or
destroys, or damages with intent to destroy or render useless, any
machine or engine, whether fixed or movable, used or intended to be
used for sowing, reaping, mowing, thrashing, ploughing or draining, or
for performing any other agricultural operation, or any machine or
engine, or any tool or implement whether fixed or movable, prepared
for or employed in any manufacture whatsoever except the manu-
facture of silk, woollen, linen, cotton, hair, mohair or alpaca goods, or
goods of any one or more of those materials mixed with each other,
or mixed with any other material, or any framework-knitted piece,
stocking, hose or lace, is guilty of felony, and liable to seven years'
imprisonment.— 32-33 V-, c. 22, s. 19. 24-25 V., c. 97, s. 15, Imp.
As to verdict for an attempt to commit the offence
charged upon an indictment for the offence itself, in cer-
tain cases, see sect. 183 Procedure Act. It is not necessary
to prove malice against owner; post, sect. 60. To prove
that the act was done maliciously, it is sufficient to prove
that it was done wilfully.
Taking away part of a frame and thereby rendering it
useless, R. v. Tacey, R. & R. 452, and screwing up parts of
an engine, and reversing the plug of the pump, thereby
rendering it useless and liable to burst, R. v. Fisher, 10 Cox,
146, are damaging within the act, although no actual per-
.
MALICIOUS INJURIES TO PROPERTY. 577
manent injury be done. — If a thrashing machine be taken
to pieces and separated by the owner, the destruction of
any part of it is within the statute. — R. v. MackereU, 4 G.
& P. 448. So is the destruction of a water-wheel, by
which a thrashing machine is worked. — R. v. Fidler, 4 C.
<£• P. 449. — So though the side boards of the machine be
wanting, without which it will act, but not perfectly, it is
within the statute. But if the machine be taken to pieces,
and in part destroyed by the owner from fear, the remaining
parts do not constitute a machine within the statute. — R.
v. West, 2 Ru88. 1087. It is not necessary that any part
of the machine should be broken ; a dislocation or disar-
rangement is sufficient. — R. v. Foster, 6 Cox, 25. A table
with a hole in it for water, used in the manufacture of
bricks, was held not to be a machine " prepared for or
employed in any manufacture " within the repealed
statute ; but it would no doubt now be held to be within
the words tool or implement contained in the present
section. — 3 Burn, 776.
Indictment for cutting goods in the loom. —
twenty-five yards of woollen cloth of the goods and chat-
tels of J. N. in a certain loom then being, feloniously,
unlawfully and maliciously did cut and destroy, against
the form
Indictment for breaking warp of silk a certain
warp of silk, of the goods and chattels of J. X., feloniously,
maliciously and unlawfully did cut and destroy, against
the form
Indictment for entering by force into a house vAth
intent to cut or destroy woollen goods into a cer-
tain house of J. N. situate feloniously and by force
did enter, with intent certain woollen goods of the said J.
N. in a certain loom then and there being, feloniously,
n
578 MALICIOUS INJURIES TO PROPERTY.
unlawfully and maliciously to cut and destroy, against the
form
Indictment for destroying a thrashing machine
a certain thrashing machine, the property of J. N., feloni-
ously, unlawfully and maliciously did cut, break and des-
troy, against the form — Archbold.
INJURY TO CORN, TREES AND VEGETABLE PRODUCTIONS.
18. Every one who unlawfully and maliciously sets fire to any
crop of hay, grass, corn, grain or pulse, or of any cultivated vegetable
produce, whether standing or cut down, or to any part of any wood,
coppice or plantation of trees, or to any heath, gorse furze or fern
wheresoever the same is growing, is guilty of felony, and liable to
fourteen years' imprisonment. — 32-33 V-, c. 22, s. 20. 24-25 V.} c.
97, s. 16, Imp.
19. Every one who unlawfully and maliciously sets fire to any
stack of corn, grain, pulse, tares, hay, straw, haulm or stubble, or of
any cultivated vegetable produce, or of furze, gorse, heath, fern, turf,
peat, coals, charcoal, wood or bark, or to any stere or pile of wood or
bark, is guilty of felony, and liable to imprisonment for life. — 32-33
V., c. 22, s. 21. 24-25 V., c 97, s. 17, Imp.
20. Every one who unlawfully and maliciously, by any overt act,
attempts to set fire to any matter or thing mentioned in either of the
two sections next preceding, under such circumstances that if the
same were thereby set fire to, the offender would be, under either of
such sections, guilty of felony, is guilty of felony, and liable to seven
years' imprisonment.— 32-33 V., c 22, s. 22. 24-25 V., c. 97, s. 18,
Imp.
Indictment for setting fire to a stack of wheat
feloniously, unlawfully and maliciously did set fire to a
certain stack of wheat, of J. N., aginst the form
Where the word unlawfully was omitted, the judges
held the indictment to be bad. — R. v. Turner, 1 Moo. G.
C. 239. No intent need be stated. E. v. Newill, 1 Moo.
C. C. 458 ; E. v. Woodward 1 Moo. C. C. 323.
Prove that the defendant wilfully set fire to the stack of
MALICIOUS INJURIES TO PROPERTY. 579
wheat, as stated in the indictment, and prove the owner-
ship of the property. An indictment for setting fire to a
stack of beans, R. v. Woodivard, 1 Moo. C. C. 323 ; or
barley, R. v. Swatkins, 4 C. & P. 548, is good; for the
court will take notice that beans are pulse, and barley,
corn. A stack composed of the flax-plant with the seed
or grain in it, the jury finding that the flax-seed is a
grain, was held to be a stack of grain. — R. v. Spencer,
Dears. & B. 131. The prisoner was indicted for setting
fire to a stack of wood, and it appeared that the wood set
fire to consisted of a score of faggots heaped on each other
in a temporary loft over the gateway. Held, this not to be a
stack of wood. — R. v. Aris, 6 C. & P. 348. Where the defen-
dant set fire to a summer-house in a wood, and the fire was
thence communicated to the wood, he was held to be
properly convicted on an indictment charging him with
setting fire to the wood. — R. v. Price, 9 C. & P. 729. An
indictment for setting fire to a cock of hay cannot be
sustained under a statute making it an offence to set fire
to a stack of hay. — R. v. McKeever, 5 Ir. R. C. L. 86. A
quantity of straw, packed on a lory, in course of trans-
mission to market, and left for the night in the yard of an
inn, is not a stack of straw within 24-25 Vict., c. 97, s. 17,
Imp. (19 of our statute) and the setting fire thereto wilfully
and maliciously is not felony. — R. v. Satchwell, 12 Cox,
449.
Sec. 19 does not apply to manufactured lumber. — R. v
Berthe, 16 C. L. J. 251.
DESTROYING HOP-BINDS, ETC.
21. Every one who unlawfully and maliciously cuts or otherwise
destroys any bop-binds growing on poles in any plantation of bop?, or
any grape vines growing in any vineyard, is guilty of felony, and liable
to fourteen years' imprisonment. — 32-33 V-, c. 22, *. 23. 24-25 P~., e.
97, s. 19, Imp.
580 MALICIOUS INJURIES TO PROPERTY.
The words in italics are not in the English Act.
As to verdict for an attempt to commit the felony charged
upon an indictment under this section, see sect. 183 of the
Procedure Act.
Indictment. — one thousand hop-binds, the pro-
perty of J. N., then growing on poles in a certain plantation
of hops of the said J. N., situate feloniously, unlaw-
fully and maliciously did cut and destroy ; against the
form — Archbold. See jB. v. Woodward, 1 Moo.
a a 323.
Prove that the defendant cut or otherwise destroyed the
hop-binds, or some part of them, as alleged : that they were
at the time growing^in a plantation of hops, situate as
described, belonging to J. N. Prove also that the act was
done maliciously, that is to say, wilfully, and without the
belief of a supposed right. — A rchbold.
DESTROYING TREES, ETC
22. Every one who unlawfully and maliciously cuts, breaks,
barks, roots up or otherwise destroys or dam iges the whole or any
part of any tree, sapli shrub, or any underwood growing in any
park, pleasure ground, garden, orchard or avenue, or in any ground
adjoining or belonging to any dwelling-house, if the amount of the
injury done exceeds the sum of five dollars, is guilty of felony, and
liable to three years' imprisonment.— 32-33 F.,c 22, s. 24. 24-25 V.,
c. 97, s. 20, Imp.
23. Every one who unlawfully and maliciously cuts, breaks, k.rks,
roots up or otherwise destroys or damages the whole or any part of
any tree, sapling or shrub, or any underwood growing in any public
street or place or elsewhere than in any park, pleasure ground, garden,
orchard or avenue, or in any ground adjoining or belonging to any
dwelling-house, if the amount of injury done exceeds the sum of
twenty dollars, is guilty of felony, and liable to three years' imprison -
me n— 32-33 V., c. 22, s. 25. 24-25 V., c. 97, s. 21, Imp.
Indictment under sect. 22 two elm trees, the
property of J. N. ; then growing in a certain park, of the
MALICIOUS INJUELES TO PROPERTY. 581
said J. X., situate in feloniously, unlawfully and
maliciously did cut and damage, thereby then doing injury
to the said J. N. to an amount exceeding the sum of five
dollars, to wit, the amount of ten dollars, against the
form (A count may he added for cutting with
intent to steal the trees, under sect. 18 of the Larceny
Act.) — Arch-bold-.
Indictment under sect. 23 ten elm trees; the
property of J. X., then growing in a certain close of the
said J. K, situate feloniously, unlawfully and mali-
ciously did cut and damage, thereby then doing injury to
the said J. N. to an amount exceding the sum of twenty
dollars, to wit, the sum of twenty-five dollars, against the
form (Add a count, under sect. 18 of the Larceny
Act.)
See sec. 183, Procedure Act, as to a verdict for an
attempt to commit the offence charged upon an indictment
for the offence, in certain cases.
A variance in the number of trees is not material. It
must be proved, under sect. 22, that the tree was growing
in a park, and that the damage done exceeds five dollars.
Under sect. 23, the damage must exceed twenty dollars,
and the trees growing elsewhere than in a park. The
amount of injury done means the actual injury done to
the trees, by the defendant's act; it is not sufficient to
bring the case within the statute, that, although the amount
of such actual injury is less than twenty dollars, the
amount of consequential damage would exceed twenty
dollars. — R. v. IVIiiteman, Dears. 353. An indictment
under these sections is defective, if it does not allege the
act to have been done unlawfully and maliciously, and
it is not sufficient to state that it was done feloniously. —
JR. v. LevAs, 2 Russ. 1067.
582 MALICIOUS INJURIES TO PROPERTY.
Two indictments were preferred against defendants for
feloniously destroying the fruit trees respectively of M. and
C. The offences charged were proved to have been com-
mitted on the same night, and the injury complained of
was done in the same manner in both cases. Defendants
were put on trial on the charge of destroying the trees of
M. and evidence relative to the offence charged in the
other indictment was admitted as showing that the offences
had been committed by the same persons.
Held, that such evidence was properly received. — The
Queen v. McDonald, 10 0. R. 553.
DAMAGING TREES TO THE AMOUNT OF TWENTY-FIVE CENTS.
24. Every one who unlawfully and maliciously cuts, breaks,
Larks, roots up or otherwise destroys or damages the whole or any
part of any tree, sapling or shrub, or any underwood, wheresoever the
same is growing, the iujury done being to the amount of twenty-five
cents at the least, shall, on summary conviction, be liable to a penalty
not exceeding five dollars over and above the amount of the injury
done, or to one month's imprisonment, with or without hard labor ;
2. Every one who having been convicted of any such offence, either
against this or any other Act or law, afterwards commits any of the
offences in this section mentioned, shall, on summary conviction, be
liable to a penalty not exceeding twenty dollars over and above the
am >unt of the injury done, or to three months' imprisonment with hard
labor :
3. Every one who, having been twice convicted of any such offence,
afterwards commits any of the offences in this section mentioned, is
guilty, of a misdemeanor, and liable to imprisonment for any term
less than two years.— 32-33 V., c. 22. s. 26. 24-25 V., c. 97, s. 22,
Imp.
If the injury done does not amount to twenty-five cents,
the defendant may be punished under sect. 59, post. — R.
v. Dodson, 9 A. & E. 704.
If a tree is cut or damaged, that is sufficient ; it need
not be totally destroyed. — Taylor's Case, R. <&R. 373.
MALICIOUS INJURIES TO PROPERTY. 583
Indictment after two previous convictions for cutting
or damaging trees to the value of twenty-five cents where-
soever groiving. — that J. S., on one elm
tree, the property of J. N., then growing on a certain land
of the said J. N., in the unlawfully and mali-
ciously did cut and damage, thereby then doing injury to
the said J. N., to the amount of forty cents, against the
form of the statute in such case made and provided. And
the jurors aforesaid, upon their oath aforesaid, do say, that
heretofore and before the committing of the offence herein-
before mentioned {stating the two previous convictions.)
See sees. 139 and 207 of the Procedure Act, as to indict-
ments and procedure in indictable offences committed after
previous convictions, and for which a greater punishment
may be inflicted on that account.
If in answer to a charge under this section, the defen-
dant sets up a bona fide claim of right, the justices of the
peace have no jurisdiction. — R. v. O'Brien, 5 Q. L. R. 161.
DESTROYING PLANTS, ETC., IN A GARDEN.
25. Every one who unlawfully and maliciously destroys, or dam-
ages with intent to destroy, any plant, root, fruit or vegetable produc-
tion, growing in any garden, orchard, nursery ground, house, hot-house
green-house or conservatory, shall, on summary conviction, be liable
to a penalty not exceeding twenty dollars over and above the amount
of the injury done, or to three months' imprisonment, with or without
hard labor :
2. Every one who, having been convicted of any such offence, either
against this or any other Act or law, afterwards commits any of the
offences in this section mentioned, is guilty of felony, and liable to
two years' imprisonment.— 32-33 V., c 22, s. 27. 24 25 V., e. 97, *. 23,
Imp.
Sects. 139 and 207 of the Procedure Act provide for the
form of indictment and the procedure in cases of offences
committed after a previous conviction, and for which, on
584 MALICIOUS INJURIES TO PROPERTY.
that account, a greater punishment may be inflicted. — R.
v. Martin, 11 Cox, 343.
Indictment for destroying plants after a previous
conviction. — that J. S., on one dozen heads
of celery, the property of J. N., in a certain garden of the
said J. N., situate then growing, unlawfully and
maliciously did destroy, against the form of the statute in
such case made and provided. And the jurors aforesaid,
upon their oath aforesaid, do say that heretofore and before
the committing of the offence hereinbefore mentioned
(state the 'previous conviction.) And so, the jurors afore-
said, upon their oath aforesaid, do say that the said J. S.,
on the day and year first aforesaid, one dozen heads of
celery, the property of J. N. in a certain garden of the said
J. N., situate then growing, feloniously, unlawfully
and maliciously did destroy, against the form
DESTROYING PLANTS, ETC., NOT IN A GARDEN.
26. Every one who unlawfully and maliciously destroys, or dam-
ages with intent to destroy, any cultivated root or plant used for the
food of man or beast, or for medicine, or for distilling, or for dyeing*
or for or in the course of any manufacture, and growing in any land,
open or inclosed, not being a garden, orchard or nursery ground, shall,
on summary conviction, be liable to a penalty not exceeding five dol-
lars over and above the amount of the injury done, or to one month's
imprisonment, with or without hard labor, and in default of payment
of such penalty and costs, if any, to imprisonment for any term not
exceeding one month :
2. Every one who, having been convicted of any such offence, either
against this or any other Act or law, afterwards commits any of the
offences in this section mentioned, shall, on summary conviction, be
liable to three months' imprisonment with hard labor. — 32-23 V., c.
22, s. 28. 24-25 V., c. 97, s. 24, Imp.
See remarks under the last two preceding sections.
INJURIES TO FENCES.
27. Every one who, unlawfully and maliciously cuts, breaks,
MALICIOUS INJURIES TO PROPERTY. 585
throws down, or in anywise destroys any fence of any description
whatsoever, or any wall, stile or gate, or any part thereof, respec-
tively, shall, on summary conviction, be liable to a penalty not exceed-
ing five dollars, over and above the amount of the injury done :
2. Every one who, having been convicted of any such offence, either
against this or any other Act or law, afterwards commits any of the
offences in this section mentioned, shall, on summary conviction, be
liable to three months' imprisonment with hard labor. — 32-33 F., c. 22,
s. 29. 24-25 F, c- 97, s. 25, Imp.
The act must have been done maliciously to be punish-
able under this clause. — R. v. Bradshaw, 38 U. C. Q. B.
564.
INJURIES TO MINES.
28. Every one who unlawfully and maliciously sets fire to any
mine of coal, cannel coal, anthracite or other mineral fuel, or to any
mine or well of oil or other combustible substance, is guilty of felony
and liable to imprisonment for life.— 32-33 F, c. 22, s. 30. 24-25 F,
c. 97, s. 26, Imp.
29. Every one who unlawfully and maliciously, by any overt act
attempts to set fire to any mine, or to any such oil well, under such
circumstances that if the same were thereby set fire to, the offender
would be guilty of felony, is guilty of felony, and liable to fourteen
rears' imprisonment— 32-33 F, e. 22, s. 31. 24-25 F, c. 97, s. 27,
Imp.
The words in italics are not in the Imperial Act.
It is equally an offence within this section to set fire to
a mine in the possession of the party himself, provided it
is proved to be done with intent to injuie or defraud any
other person. The mine may be laid as the property of
the person in possession of or working it, though only as
agent.— R v. Jones, 2 Moo. C. C. 293.
Indictment. — feloniously, unlawfully and mali-
ciously did set fire to a certain mine of coal of J. X., situate
at against the form
586 MALICIOUS INJURIES TO PROPERTY.
DROWNING MINES, ETC.
30. Every one who unlawfully and maliciously causes any water,
earth, rubbish or other substance to be conveyed or to run or fall into
any mine, or into any oil well, or into any subterraneous passage com-
municating therewith, with intent thereby to destroy or damage such
mine or well, or to hinder or delay the working thereof, or who, with
the like intent, unlawfully and maliciously pulls down, fills up or
obstructs or damages with intent to destroy, obstruct or render useless,
any airway, waterway, drain, pit, level, or shaft of or belonging to any
mine or well, is guilty of felony, and liable to seven years' imprison-
ment :
2. This section shall not extend to any damage committed under-
ground by any owner of any adjoining mine or well in working the
same, or by any person duly employed in such working. — 32-33 V., c.
22, s. 32. 24-25 V., c. 97, s. 28, Imp.
The words in italics are additions to the English statute,
and intended, no doubt, as in the last two preceding sec-
tions, to protect petroleum wells.
See the remarks under these two sections.
Indictment for drowning a mine. — feloniously,
unlawfully and maliciously did cause a quantity of water
to be conveyed into a certain mine of J. N., situate
with intent thereby then feloniously to destroy the said
mine, against the form of the statute
Acts causing the damages mentioned in this section
done in the bona fide exercise of a supposed right and
without a wicked mind are not indictable. — JR. v. Matthews,
14 Cox, 5.
DESTROYING OR DAMAGING ENGINES, ETC., USED IN MINES.
31. Every one who unlawfully, and maliciously pulls down or
destroys or damages with intent to destroy or render useless any steam
engine or other engine for sinking, draining, ventilating or working,
or for in anywise assisting in sinking, draining, ventilating or work-
ing any mine or oil well or any appliance or apparatus in connection
with any such steam or other engine, or any staith, building or erec-
tion used in conducting the business of any mine or oil well, or any
MALICIOUS INJURIES TO PROPERTY. 587
bridge, waggon-way or track for conveying minerals or oil from any
mine or well, whether such engine, staith, building, erection, bridge,
waggon-way or track is completed or in an unfinished state, or unlaw-
fully and maliciously stops, obstructs or hinders the working of any
such steam or other engine, or of any such appliances or apparatus as
aforesaid, with intent thereby to destroy or damage any mine or oil
well, or to hinder, obstruct or delay the working thereof, or unlaw-
fully and maliciously, wholly or partially, cuts through, severs,
breaks or unfastens, or damages with intent to destroy or render use-
less any rope, chain or tackle, of whatsoever material the same is
made, used in any mine or oil well, or in or upon any inclined plane,
railway or other way or other work whatsoever, in anywise belonging
or appertaining to or connected with or employed in any mine or oil
well, or the working or business thereof, is guilty of felony, and liable
to seven years' imprisonment. — 32-33 V., n. 22, s. 33. 24-25 V., c. 97,
s. 29, Imp.
See sect. 183 of the Procedure Act as to a verdict for
an attempt to commit the offence charged in certain cases.
Prove that the defendant pulled down or destroyed the
engine, as alleged. A scaffold erected at some distance
above the bottom of a mine, for the purpose of working a
vein of coal on a level with the scaffold was holden to be
an erection used in conducting the business of the mine,
within the meaning of the statute. — R. v. Whittiyigham,
9 G. & P. 234. — Wrongfully setting a steam-engine in
motion, without its proper machinery attached to it, and
thereby damaging it and rendering it useless, is within the
section. — R. v. Norris, 9 C. & P. 241. Damaging a drum
moved by a steam-engine, but of which it forms no part,
is not damaging a steam-engine. — R. v. Whittingham,
8uprd. A trunk of wood used to convey water to wash
the earth from the ore was held to be an erection used in
conductiug the business of a mine within the meaning of
the statute. — BarweU v. IMnterstoke, 14 Q. B. 704.
Indictment. — a certain steam-engine, the pro-
perty of J. N. for the draining and working of a certain
588 MALICIOUS INJURIES TO PROPERTY.
mine of the said J. N"., situate feloniously, unlaw-
fully and maliciously did pull down and destroy, against
the form
Acts causing the damages covered by this section must
be done maliciously, and not in the bona fide exercise of a
supposed right, to be punishable under its terms, — R. v-
Matthews, 14 Cox, 5.
INJURIES TO SEA AND RIVER BANKS, AND TO WORKS ON
RIVERS, CANALS, ETC.
32. Every one who unlawfully and maliciously breaks down or
cuts down, or otherwise damages or destroys any sea bank, sea wall*
dyke or aboiteau, or the bank, dam or wall of or belonging to any
river, canal, drain, reservoir, pool or marsh, whereby any land or
building is, or is in danger of being overflowed or damaged,— or unlaw-
fully and maliciously throws, breaks or cuts down, levels, undermines
or otherwise destroys any quay, wharf, jetty, lock, sluice, floodgate,
weir, tunnel, towing-path, drain, water-course or other work belonging
to any port, harbor, dock or reservoir, or on or belonging to any navi-
gable water or canal, or any dam or structure erected to create
or utilize any hydraulic power, or any embankment for the support
thereof, is guilty of felony, and liable to imprisonment for life. —
32-33 V., c. 22, s. 34. 24-25 V., c 97, s. 30, Imp.
33. Every one who unlawfully and maliciously cuts off, draws up
or removes any piles, stone or other materials, fixed in the ground
and used for securing any sea bank or sea wall, or the bank, dam or
wall of any river, canal, drain, aqueduct, marsh, reservoir, pool, port,
harbor, dock, quay, wharf, jetty or lock, — or unlawfully and malici-
ously opens or draws up any floodgate or sluice, or does any other in-
jury or mischief to any navigable river or canal, with intent and so as
thereby to obstruct or prevent the carrying on, completing or main-
taining the navigation thereof, is guilty of felony, and liable to seven
years' imprisonment.— 32-33 V., c. 22, s. 35. 24-25 V., c. 97, s. 31,
Imp.
Indictment under sect. 32 — a certain part of the
bank of a certain river called the river situate
feloniously, unlawfully and maliciously did cut down and
MALICIOUS INJURIES TO PROPERTY. 589
break down, by means whereof certain lands were then
overflowed and damaged (or were in danger )
against
Indictment under sect. 33 — a certain pile, then
fixed in the ground, and then used for securing the bank
of a certain river called the river situate
feloniously, unlawfully and maliciously did cut off*, against
the form
See R. v. Woodward 1 Moo. C. C. 323.
INJURIES TO FISH PONDS.
34. Every one who unlawfully and maliciously cuts through,
breaks down or otherwise destroys the dam, floodgate or sluice of
any fish-pond, or of any water which is private property, or in which
there is any private right of fishery, with intent thereby to take or
destroy any of the fish in such pond or water, or 60 as thereby to cause
the loss or destruction of any of the fish, — or unlawfully and malici-
ously puts any lime or other noxious material in any such pond or
water, with intent thereby to destroy any of the fish that are then or
that may thereafter be put therein, — or unlawfully and maliciously
cuts through, breaks down or otherwise destroys the dam or floodgate
of any mill-pond, reservoir or pool, is guilty of a misdemeanor, and
liable to seven years' imprisonment. — 32-33 F., c. 22, s. 36. 24-25 V.,
c. 97, s. 32, Imp.
Indictment for breaking down the dam of a fish-pond —
the dam of a certain fish-pond of one J. N., situate
unlawfully and maliciously did break down and
destroy with intent thereby then to take and destroy the
fish in the said pond then being, against the form
Indictment for putting lime into a fish-pond. —
unlawfully and maliciously did put a large quantity, to
wit, ten bushels of lime, into a certain fish-pond of one J.
N., situate with intent thereby then to destroy the
fish in the said pond then being, against the form
Indictment for breaking down a mill dam. —
590 MALICIOUS INJURIES TO PROPERTY.
the dam of a certain mill-pond of J. N., situate
unlawfully and maliciously did break down and destroy,
against the
Maliciously in all cases under this act means a wrong-
ful act done intentionally without just cause or excuse. R.
v. Matthews 14 Cox, 5 ; 2 Buss. 1073, note by Greaves.
— See Procedure Act sec. 183, as to a verdict for an attempt
to commit the misdemeanor charged in certain cases, upon
an indictment for the misdemeanor itself.
INJURIES TO BRIDGES, VIADUCTS AND TOLL-BARS.
35. Every one who unlawfully and maliciously pulls or throws down,
or in anywise destroys any bridge, whether over any stream of water or
not, or any viaduct or aqueduct, over or under which bridge, viaduct
or aqueduct any highway, railway or canal passes, or does any injury
with intent and so as thereby to render such bridge, viaduct or aque-
duct, or tbe highway, railway or canal passing over or under the same,
or any part thereof, dangerous or impassable, is guilty of felony, and
liable to imprisonment for life.— 32-33 V., c. 22, s. 37. 24-25 V.,c.
97, s. 33, Imp.
This clause by the words over any stream of water or
not does away with the difficulties raised in R. v. Oxford-
shire, IB. & A. 289-297, and R. v. Derbyshire, 2 Q. B.
745.
The clause does not apply to private bridges, but any
injury to a private bridge exceeding the sum of twenty
dollars would bring the case within sect. 58, post, and if
less than that sum within sect. 59, post.
Indictment for pulling down a bridge. — a cer-
tain bridge, situate feloniously, unlawfully and
maliciously did pull down and destroy, against the form
Indictment for injuring a bridge. — feloniously,
unlawfully and maliciously did (state the injury) a cer-
tain bridge, situate with intent thereby to render
MALICIOUS INJURIES TO PROPERTY. 591
the said bridge dangerous and impassable, against the form
— Archbold.
The intent, under this part of this section must be laid
'and proved, but if the bridge be proved to have been ren-
dered dangerous or impassable, by the act of the defendant,
it will be sufficient proof of the intent. — Archbold.
See sect. 183 Procedure Act, as to a verdict for an
attempt to commit the offence charged in certain cases
upon an indictment for the offence itself.
DESTROYING TURNPIKE GATES, TOLL-BARS, ETC.
36. Every one who unlawfully and maliciously throws down
levels or otherwise destroys, in whole or in part, any turnpike gate or
toll-bar, or any wall, chain, rail, post, bar or other fence belonging to
any turnpike gate or toll-bar, or set up or erected to prevent passengers
passing by without paying any loll directed to be paid by any Act or
law relating thereto, or any house, building or weighing engine erected
for the better collection, ascertainment or security of any such toll, is
guilty of a misdemeanor, and liable to fine or imprisonment, or both,
in the discretion of the court.— 32-33 F., c. 22, s. 38. 24-25 F, c. 97,
s. 34, Imp.
Indictment. — a certain turnpike gate, situate
unlawfully and maliciously did throw down, level
and destroy, against the form
See c. 181, post, sees. 24, 26 and 31, as to punishment.
INJURIES TO RAILWAYS AND TELEGRAPHS.
37. Every one who unlawfully and maliciously, and with intent
to obstruct, endanger, upset, overthrow, injure or destroy any engine,
tender, carriage, truck or vehicle, on anj railway, or any property
passing over or along any railway,
(a) Puts, places, casts or throws any wood, stone or other matter
or thing upon ur across any railway,
(6.) Breaks, takes up, removes, displaces, injures or destroys any
rail, railway switch, sleeper, bridge, fence or other matter or thing, or
any portion thereof, belonging to any railway,
(c.) Turns, moves or diverts any point or other machinery belonging
to any railway,
592 MALICIOUS INJURIES TO PROPERTY.
(d.) Makes or shows, hides or removes any signal or light upon or
near any railway, or
(e.) Does or causes to be done, any other matter or thing,
Is guilty of a felony, and liable to imprisonment for life. — 32-33 V.,
c. 22, s. 39. 42 V., c. 9, s. 88, part. 44 V., c. 25, s. 116, part 24-25
V., c 97, s. 35, Imp.
38. Every one who unlawfully and maliciously —
(a) Breaks, throws down, injures or destroys, or does any other
hurt or mischief to,
(6.) Obstructs or interrupts the free use of, or
(c.) Obstructs, hinders or prevents the carrying on, completing,
supporting or maintaining of
Any railway or any part thereof, or any building, structure, station,
depot, wharf, vessel, fixture, bridge, fence, engine, tender, carriage,
truck, vehicle, machinery or other work, device, matter or thing, of
such railway, or appertaining thereto or connected therewith,
Is guilty of a misdemeanor, and liable to five years' imprisonment.
—42 V., c. 9, ss. 87 and 90. 44 V., c. 25, ss. 115 and 1 18.
39. Every one who, by any means, or in any manner or way
whatsoever, or by any wilful omission or neglect, obstructs or
interrupts, or causes to be obstructed or interrupted, or aids or assists
in obstructing or interrupting, the free use of any railway or any part
thereof, or any building, structure, station, depot, wharf, vessel,
fixture, bridge, fence, engine, tender, carriage, truck, vehicle,
machinery or other work, device or thing of such railway, or apper-
taining thereto, or connected therewith, is guilty of a misdemeanor,
and liable to two years' imprisonment. — 32-33 V., c 22, s. 40. 42 V.
c. 9, s. 86. 44 V., c. 25, s. 114. 24-25 V., c 97, s. 36, Imp.
40. Every one who unlawfully and maliciously cuts, breaks,
throws down, destroys, injures or removes any battery, machinery,
wire, cable, post or other matter or thing whatsoever, being part of
or being used or employed in or about any electric or magnetic
telegraph, electric light, telephone or fire alarm, or in the working
thereof, or for the transmission of electricity for other lawful pur-
poses, or unlawfully and maliciously prevents or obstructs, in any
manner whatsoever, the sending, conveyance or delivery of any com-
munication by any such telegraph, telephone or fire alarm, or the
transmission of electricity for any such electric light or for any such
MALICIOUS INJURIES TO PROPERTY. 593
purpose as aforesaid, is guilty of a misdemeanor, and liable to impris-
onment for any term less than two years. — 32-33 V., c- 22, s. 41. 24-
25 V., c 97, s. 37, Imp.
41« Every one who unlawfully an 1 maliciously, by any overt act,
attempts to commit any of the offences in the next preceding section
mentioned, shall, on summary conviction, be liable to a penalty sot
exceeding fifty dollars, or to three months' imprisonment, with or
without hard labor— 32-33 F., c. 22, s. 42. 24-25 F, c 97, s. 38, Imp.
See sec. 25 of c. 162, page 177, ante The extension of
sec. 40 to telephones, electric lights and fire alarms, or
to the transmission of electricity for any such electric
light, or for any such purpose as aforesaid, is new law.
See sec. 183 of the Procedure Act as to a verdict of
attempt to commit the offence charged in certain cases.
The words " endanger " and " or any property passing
over and along any railway " in sec. 37, are not in the
Imperial Act. Neither are the words, "breaks, injures or
destroys," nor " railway switch, bridge, fence " in sub. sec. b.
The prisoners were indicted in several counts for wilfully
and maliciously placiug a stone upon the North Woolwich
Kailway, with intent to damage, injure, and obstruct the
carriages travelling upon it.
It appeared that the prisoners, who were respectively
aged thirteen and fourteen, had placed a stone on the
railway in such a way as to interfere with the machinery
of the points, and prevent them from acting properly, so
that if a train had come up at the time the stone remained
as placed by the prisoners it would have been passed off
the line, and a serious accident must have been the con-
sequence. Gutteridge held up the points whilst Upton
dropped in the stone.
Wightman, J., told the jury that in order to convict the
prisoners it was necessary, in the first place, to prove that
they had wilfully placed the stone in the position stated
00
594 MALICIOUS INJURIES TO PROPERTY.
upon the railway ; and secondly, that it was done mali-
ciously, and with the purpose of causing mischief. It was
his duty to inform them that it was not necessary that the
prisoners should have entertained any feeling of malice
against the railway company, or against any person travel-
ling upon it ; it was quite enough to support the charge if
the act was done with a view to some mischievous conse-
quence or other, and if that fact was made out the jury
would be justified in finding the prisoners guilty, notwith-
standing their youth. They were undoubtedly very young ;
but persons of their age were just as well competent to
form an opinion of the consequences of an act of this
description as an adult person. Verdict, guilty upon the
counts charging an intent to obstruct the engine. — R. v.
Upton (Greaves Lord Campbell's Acts, Appendix).
Indictment under sect. 37. — feloniously, unlaw-
fully and maliciously did put and place a piece of wood
upon a certain railway called in with intent
thereby then to obstruct, upset, overthrow, and injure a
certain engine and certain carriages using the said railway,
against the form — Archbold. (The intent may be
laid in different ivays, in different counts, if necessary.)
Prove that the defendant placed the piece of wood upon
or across the railroad as described in the indictment, or was
present aiding and assisting in doing so. The intent may
be inferred from circumstances from which the jury may
presume it. In general, the act being done wilfully, and
its being likely to obstruct or upset the railway train,
would be sufficient primd facie evidence of an intent to
do so. Where the engine or carriage is in fact obstructed,
or the safety of the persons conveyed therein is in fact
endangered by the defendant's act, but there is no evidence
of any of the intents mentioned in sect. 37, the defendant
MALICIOUS INJURIES TO PROPERTY. 595
should be indicted for a misdemeanor under sect. 39 — R.
v. Bradford, Bell, C. C. 268. — A line of railway con-
structed under an Act of Parliament, but not yet opened
for public traffic, and used only for the carriage of materials
and workmen, is within the statute. — Idem. A drunken
man got upon the railway and altered the signals
and thereby caused a luggage train to pull up and
proceed at a very slow pace : Held, upon a case reserved,
Martin, B. dissentient, that this was a causing of an
engine and carriage using a railway to be obstructed
within the meaning of sect. 36 (39 of our statute) of the
act in question. — R. v. Hadjield, 11 Cox, 574. A person
improperly went upon a line of railway and purposely
attempted to stop a train approaching by placing himself on
the space between two lines of rails, and holding up his
arms in the mode adopted by inspectors of the line when
desirous of stopping a train : Held, that this amounted to
the offence of unlawfully obstructing an engine or carriage
using a railway under sect. 36 (39 of our statute) of the
statute in question. — jR. v. Hardy, 11 Cox, 656.
Indictment under sec. 37 b. — Berkshire (to wit).
The Jurors for Our Lady the Queen, upon their oath present,
that on ihejirst day of May, in the year of our Lord 1852,
at the parish of Goring, in the county of Berks, A. B. did
feloniously, unlawfully, and maliciously take up {take up
remove, or displace) a certain rail (any rail, sleeper, or
other matter or thing) then and there belonging to a certain
railway there, called " The Great Western Railway,"
with intent, etc. (Conclude as in last precedent. Vary
counts and intent.)
Indictment under sec, 37 c. — Berkskire (to wit).
The Jurors for Our Lady the Queen upon their oath present,
that on the first day of May, in the year of our Lord 1852,
596 MALICIOUS INJURIES TO PROPERTY.
at the parish of Goring, in the county of Berks, A. B. did
feloniously, unlawfully, and maliciously turn [turn, move,
or divert] certain points [any points or other machinery]
then and there belonging to a certain railway there called
" The Great Western Railway" with intent, etc. (Con-
clude as in last precedent. Vary counts and intent.)
Indictment under sec. 37 d. — Berkshire (to wit).
The Jurors for Our Lady the Queen upon their oath present,
that on the first day of May, in the year of our Lord 1852>
at the parish of Goring, in the county of Berks, A. B. did
feloniously, unlawfully, and maliciously make (make or
show, hide or remove) a certain signal (any signal or light)
upon (upon or near to) a certain railway there, called
il The Great Western Railway," with intent, etc. (Con-
clude as in the last precedent. Vary counts and intent)
Indictment under sec. 37 e. — Berkshire (to wit).
The Jurors for Our Lady the Queen, upon their oath present,
that on the first day of May in the year of our Lord 1852,
at the parish of Goring, in the county of Berks, A. B. did
feloniously, unlawfully, and maliciously set fire to (do or
cause to be done any other matter or thing) a certain car-
riage, then and there using a certain railway there, called
" The Great Western Railway" with intent thereby then
and there to destroy [obstruct, upset, overthrow, injure
or destroy] the said carriage [any engine, carriage, or
truck, using such railway], so then and there using the
said railway as aforesaid. (Vary counts and intent.)
INJURIES TO WORKS OF ART.
42. Every one who unlawfully and maliciously destroys or dam-
ages any book, manuscript, picture, print, statue, bust or vase, or any
other article or thing kept for the purposes of art, science or literature,
or as an object of curiosity in auy museum, gallery, cabinet, library
or other depository, which museum, gallery, cabiuet, library, or other
MALICIOUS INJURIES TO PROPERTY. 597
depository is, either at all times or from time to time, open for the ad-
mission of the public or of any considerable number of persons to view
the same, either by the permission of the proprietor thereof, or by the
payment of money before entering the same, or any picture, statue,
monument or other memorial of the dead, painted glass or other monu-
ment or work of art in any church, chapel, meeting-bouse or other
place of divine worship, or in any building belonging to Her Majesty
or to any county, riding, city, town, village, parish or place, or to any
university, or college or hall of any university, or in any street, square,
church-yard, burial ground, public garden or ground, or any statue or
monument exposed to public view, or any ornament, railing or fence
surrounding such statue or monument, or any fountain, lamp, post,
or other thing of metal, glass, wood or other material, in any street,
square or other public place, is guilty of a misdemeanor, and liable to
one year's imprisonment:
2. Nothing herein contained shall affect the righ t of any person to
recover damages for the injury so committed. — 32-33 V., c. 22, s. 43.
24-25 V., c. 97. s. 39, Imp.
INJURIES TO CATTLE AND OTHER ANIMALS.
43. Every one who unlawfully and maliciously kills, maims,
wounds, poison or injures any cattle, is guilty of felony, and liable to
fourteen years' imprisonment. — 32-33 V., c. 22, s. 45. 24-25 V., c.
97, s. 40, Imp.
44. Every one who unlawfully and maliciously attempts to kill,
maim, wound, poison or injure any cattle, or unlawfully and mali-
ciously places poison in such a position as to be easily partaken of by
any cattle, is guilty of a misdemeanor, and liable to fine or imprison-
ment, or both in the discretion of the court. — 32-33 V., c- 22. s. 46.
The words in italics in sec. 43 are not in the Impe-
rial Act.
Sec. 44 is not in the Imperial Act.
As to the punishment under sec. 44, see, post, c. 181,
sees. 24, 26, 31.
Indictment for killing a horse. — one horse of
the goods and chattels of J. N. feloniously, unlawfully,
and maliciously did kill, against the form
The particular species of cattle killed, maimed, wounded,
598 MALICIOUS INJURIES TO PROPERTY.
poisoned or injured, must be specified ; an allegation that
the prisoner maimed certain cattle is not sufficient. — R. v.
Chalkley, R. & R. 258.
No malice against the owner is necessary; post, sect.
60. Other acts of administering poison to cattle are
admissible in evidence to show the intent with which the
drug is administered. — R. v. Mogg, 4 ft & P. 364. The
word wound is contradistinguished from a permanent
injury, such as maiming, and a wounding need not be of
a permanent nature. — R. v. Haywood, 2 East, P. ft 1076 ;
R. & R. 16.
In R. v. Jeans, 1 ft & K. 539, it was held that where
part of the tongue of a horse was torn off, there was no
offence against the statute, because no instrument was used.
But, under the present statute, the same act was held to be
a wounding within this section. — R. v. Bullock, 11 Cox,
125. Upon a case reserved, in R. v. Owens, 1 Moo. ft. C.
205, it was held that pouring acid into the eye of a mare,
and thereby blinding her, is a maiming. — Setting fire to
a building with a cow in it, and thereby burning the cow
to death, is a killing within the statute. — R. v. Haughton,
SC.&P. 555.
The prisoner by a reckless and cruel act caused the
death of a mare. The jury found that he did not intend to
kill, maim or wound the mare, but that he knew that what
he did would or might kill, maim or wound the mare,
and that he nevertheless did the act recklessly, and not
caring whether the mare was injured or nut.
Held, that there was sufficient malice to support the
conviction. — R. v. Welch, 13 Cox, 121.
In an indictment purporting to be under 32-33 V., c. 22,
s. 45, for malicious injury to property the word " feloni-
ously " was omitted.
MALICIOUS INJURIES TO PROPERTY. 599
Held, bad, and ordered to be quashed. — The Queen v.
Gough, 3 0. R. 402.
KILLING OR MAIMING OTHER ANIMALS.
45. Every one who unlawfully and maliciously kills, maims,
wounds, poisons or injures any dog, birJ, beast, or other animal, not
being cattle, but being either the subject of larceny at common law, or
being ordinarily kept in a state of confinement, or kept for any domestic
purpose, or purpose of lawful profit or advantage or science, shall, on
summary conviction, be liable to a penalty not exceeding one hundred
dollars, over and above the amount of injury done, or to three months'
imprisonment with or without hard labor;
2. Every one who, having been convicted of any such offence, after-
wards commits any of the offences in this section mentioned, is guilty
of a misdemeanor, and liable to fine or imprisonment, or both, in the
discretion of the court.— 32-33 F, c. 22, s. 47. 24-25 F., c. 97, s. 41,
Imp.
The words in italics are not in the Imperial Act.
As to the proceedings on a subsequent offence, see sees.
139 and 207 of the Procedure Act. As to the punishment
under sub. sec 2, see sees. 24, 26 and 31 of c. 181, post.
As to a verdict of attempt to commit the offence charged
in certain cases, see sec. 183 of the Procedure Act.
Greaves says : "This clause is new, and is a great improve-
ment of the law, as it will protect domestic animals, from
malicious injuries. It includes any beast or animal, not
being cattle, which is the subject of larceny at common
law. It also includes birds which are the subject of lar-
ceny at common law ; such as all kinds of poultry, and,
under certain circumstances, swans and pigeons. So also
it includes any bird, beast or other animal ordinarily kept
in a state of confinement, though not the subject of larceny,
such as parrots and ferrets ; and it is to be observed that
the words ordinarily kept in a state of confinement, are a
description of the mode in which the animals are usually
600 MALICIOUS INJURIES TO PROPERTY.
kept, and do not render it necessary to prove that the bird
or animal was confined at the time when it was injured.
Lastly the clause includes any bird or animal kept for any
domestic purpose, which clearly embraces cats.''
The words or purpose of lawful profit included in our
statute cover all animals kept in a circus, menagerie, etc.
INJURIES TO SHIPS.
4G. Every one who unlawfully and maliciously sets fire to, casts
away or in anywise destroys any ship or vessel, whether the same is
eomplete or in an unfinished state, is guilty of felony, and liable to im-
prisonment for life.— 32-33 V., c. 22, s. 48. 24-25 V., c. 97, s. 42, Imp.
47. Every one who unlawfully and maliciously sets fire to or
casts away or in anywise destroys any ship or vessel, with
intent thereby to prejudice any owner or part owner of such ship or
vessel, or of any goods on board the same, or any person who has
underwritten or who underwrites any policy of insurance upon such
ship or vessel, or on the freight thereof, or upon any goods on board
the same, is guilty of felony, and liable to imprisonment for life.— 32-
33 V., c 22, s. 49. 24-25 V., c. 97, s. 43, Imp.
48. Every one who unlawfully and maliciously, by auy overt act
attempts to set fire to, cast away, or destroy any ship or vessel, uuder
such circumstances that, if the ship or vessel were thereby set fire
to, cast away or destroyed, the offender would be guilty of felony, is
guilty of felony, and liable to fourteen years' imprisonment. — 32-33
V., c. 22, s. 50. 24-25 V., c. 97, s. 44, Imp.
Indictment under sec. 46 — that J. S., on
feloniously, unlawfully and maliciously did set fire to a
certain ship called " the Battler," the property of J. N.,
against the form
As to setting fire, etc., see notes under sections 2 and 3,
ante. — A pleasure boat, eighteen feet long was set fire to,
and Patteson, J., inclined to think that it was a vessel
within the meaning of the act, but the prisoner was
acquitted on the merits, and no decided opinion was given.
— R. v. Boivyer, 4:C.& P. 559. Upon an indictment for
MALICIOUS INJURIES TO PROPERTY. 601
firing a barge, Alderson, J., seemed to doubt if a barge was
within the meaning of the statute. — R. v. Smith, 4 C. <£ P.
569. The burning of a ship of which the defendant was
a part owner is within the statute. — R. v. Wallace, 2 Moo.
C. C. 200. See, post, sect. 61.
Indictment under sect. 47 that J. S., on
on board a certain ship called " the Rattler," the property
of J. N., on a certain voyage upon the high seas, then
being upon the high seas, feloniously, unlawfully and mali-
ciously did set fire to the said ship, with intent thereby to
prejudice the said J. N., the owner of the said ship, against
the form (The intent may be stated in different
ways, in different counts.)
In R. v. Philp, 1 Moo. G. C. 263, there was no proof of
malice against the owners, and the ship was insured for
more than its value, but the court thought that the defen-
dant must be taken to contemplate the consequences
of his act, and held that, as to this point, the conviction
was right.— See R. v. NewiU, 1 Moo. C. C. 458. The
destruction of a vessel by a part-owner shows an in-
tent to prejudice the other part-owners, though he has
insured the whole ship, and promised that the other part-
owners should have the benefit thereof. — Idem. The
underwriters on a policy of goods fraudulently made are
ithin the statute, though no goods be put on board, —
Idem. If the intent be laid to prejudice the under-
writers, then prove the policy, and that the ship sailed on
her voyage. — R. v. Gilson,R. & R. 138. It would seem,
however, that the general provision of the 46th section of
this statute renders unnecessary in any case the allegation
or the proof of the intent mentioned in the 47th section.
Proof that it was done wilfully is of itself evidence that
it was done with intent to prejudice.
602 MALICIOUS INJURIES TO PROPERTY.
A sailor goes on a ship to steal rum. While tapping
the casks, a lighted match held by him set the rum on fire,
and a conflagration ensued which destroyed the vessel. —
Held, that a conviction for arson of the ship could not be
upheld. — R. v. Faulkner, 13 Cox, 550.
Held, on the trial of the master of a vessel indicted for
scuttling her (by Allen, C. J., and Fisher and Duff, J. J.),
that s. 64 of the statute of Canada, 32-33 V., c 29, allow-
ing a witness to be cross-examined as to previous state-
ments made by him in writing or reduced into writing,
would not apply to protests made by the prisoner, or to
policies of insurance issued to the witness, or to receipts
which it did not appear the witness had either written,
signed or even seen until they were shown to him in the
witness box ; but held, by Weldon, J., that it was com-
petent, on the cross-examination of the witness, to put into
his hands a policy of insurance not in evidence, and ask
him if he did not see certain words in it ; also, to read
from a paper purporting to be a protest made by the pris-
oner and ask the witness if he did not write the protest
and if certain words were not in it. Held, also, (by Allen,
C. J., and Fisher and Duff, J. J.), that where the indict-
ment in certain counts charged the destruction of the
vessel with intent thereby to prejudice the underwri-
ters, and in others simply charged the crime without
alleging the intent, and the prisoner was found guilty
on all the counts, that even if it was necessary to show
that the prisoner had knowledge, as to which they
expressed no opinion, the court could, if necessary, alter
the verdict to a finding on the counts which did not allege
the intent.
Per Weldon, J., that it was not necessary to show the
prisoner's knowledge of the insurance, as he must be pre-
MALICIOUS INJURIES TO PROPERTY. 603
sumed to have intended the necessary consequence of his
act, which was to prejudice the underwriters.
It appeared on the trial that the prisoner, with the
greater portion of his crew including the mate, had gone
before a naval court and given a false account of the loss
of the vessel, also, that the prisoner had persuaded the
mate to suppress the log book and swear that it was lost.
Held, Fisher, J., dubitante, that the log book was pro-
perly received in evidence.
Held, also, that proof of the receipt by the prisoner of
drafts for large sums of money, drawn by parties in C,
from which the vessel which the prisoner was charged
with scuttling sailed, was properly received, and being
unexplained by the prisoner they were properly left to the
jury as evidence against him.
There is no positive rule of law that the testimony of
an accomplice must receive direct corroboration, and the
nature and extent of the corroboration required depend
a great deal upon the character of the crime charged.
Therefore, where the judge directed the jury " that it was
not necessary that T. (the accomplice) should be corrobor-
ated as to the very act of boring the holes in the vessel ;
if the other evidence, and the circumstances of the case,
satisfied them that he was telling the truth in the account
which he gave of the destruction of the vessel that would
be sufficient."
Held, a proper direction.
Held, also, that the words in a bill of lading " weight
and contents unknown" would not prevent a jury from
having the right to draw whatever inference of guilt they
pleased against the prisoner, from his knowledge that the
cargo was not what the bill of lading represented it to be.
—The Queen v. Tower, 4 P, & B. (N. B.) 168.
604 MALICIOUS INJURIES TO PROPERTY.
PLACING GUNPOWDER NEAR A VESSEL WITH INTENT, ETC.
49. Every one who unlawfully and maliciously places or throws
in, into, upon, against or near any ship or vessel, any gunpowder or
other explosive substance, with intent to destroy or damage any ship
or vessel, or any machinery, working-tools, goods or chattels, whether
or not any explosion takes place, and whether or not any injury is
effected, is guilty of felony, and liable to fourteen years' imprison-
ment.—32-33 V., c. 22, s. 51. 24-25 V-, c. 97, *. 45, Imp.
50. Every one who unlawfully and maliciously damages, other-
wise than by fire, gunpowder or other explosive substance, any ship
or vessel, whether complete or in an unfinished state, with intent to
destroy the same or render the same useless, is guilty of felony, and
liable to seven years' imprisonment. — 32-33 V-, c. 22, s. 52. 24-25
V., c 97, s. 46, Imp.
See remarks under sects. 13, 14, 46, 47, 48, ante.
FALSE SIGNALS, ETC.
51. Everyone who unlawfully masks, alters, removes or extin-
guishes any light or signal, or unlawfully exhibits any false light or
signal, with intent to bring any ship, vessel or boat into danger, or
unlawfully and maliciously does any thing tending to the immediate
loss or destruction of any ship, vessel or boat, and for which no
punishment is hereinbefore provided, is guilty of felony, and liable to
imprisonment for life.— 32-33 V., c. 22, s. 53. 33 V., c. 18, s. 4, pari.
24-25 V., c 97, s. 47, Imp.
See sec. 183 of the Procedure Act for a verdict of
attempt in certain cases.
It is to be remarked that the first part of the section
says " unlawfully " only.
Indictment for exhibiting false signals. — The Jurors
for Our Lady the Queen upon their oath present, that
before and at the time of committing the felony hereinafter
mentioned, a certain ship, the property of some person
or persons to the jurors aforesaid unknown, was sailing on
a certain river called near unto and that J.
S. on well knowing the premises, whilst the said
MALICIOUS INJURIES TO PROPERTY. 605
ship was so sailing on near unto the said parish
as aforesaid, feloniously and unlawfully did exhibit a false
light, with intent thereby to bring the said ship into danger,
against the form Archbold.
Indictment for doing an act tending to the immediate
danger of a ship. — near unto the parish of
and that J. S. on well knowing the premises, whilst
the said ship was so sailing near the said parish as afore-
said, feloniously, unlawfully and maliciously did
(state the act done,) the said act so done by the said J. S.
as aforesaid then tending to the immediate loss of the said
ship, against the form — Archbold.
CUTTING AWAY, ETC., BUOYS.
52. Every one who, unlawfully and maliciously, cuts awav, casts
adrift, removes, alters, defaces, sinks or destroys, or unlawfully- and
maliciously does any act with intent to cut away, cast adrift, remove,
alter, deface, sink or destroy, or in any other manner unlawfully
and maliciously injures or conceals any lighthouse, light-ship, float-
ing or other light, lantern or signal, or any boat, buoy, buoy-rope,
beacon, anchor, perch or mark used or intended for the guidance of
seamen, or for the purpose of navigation, is guilty of felony, and
liable to seven years' imprisonment. — 32-33 V., c. 22, s. 54. 33 V.,
c. 18, s. 4, part. 24-25 V., c 97, s. 48, Imp.
Maliciously means wilfully. See R. v. Faulkner, 13
Cox, ante, under sec. 48, and cases there cited ; also B. v.
Latimer, 16 Cox, 70.
No intent need be charged in the indictment. This
section includes the offence and the attempt to commit
the offence.
Indictment. — that J. S., on upon
the river called feloniously, unlawfully and mali-
ciously did cut away a certain buoy then used for the
guidance of seamen and for the purpose of navigation,
against the form
606 MALICIOUS INJURIES TO PROPERTY.
MAKING FAST TO BUOYS, ETC.
53. Every one who makes fast any vessel or boat to any such
buoy, beacon or sea mark, shall, on summary conviction, be liable to
a penalty not exceeding ten dollars, and in default of payment, to one
month's imprisonment. — 32-33 V.,c. 22, s. 55.
54*. Everyone who unlawfully and maliciously breaks, injures,
cuts, loosens, removes or destroys, in whole or in part, any dam, pier,
elide, boom or other such works, or any chain or other faste-
ning attached thereto, or any raft, crib of timber or saw -logs,
or unlawfully and maliciously impedes or blocks up any chan-
nel or passage intended for the transmission of timber, is guilty of a
misdemeanor, and liable to a fine or to two years' imprisonment or to
both— 32-33 V., c. 22, s. 56; C. S. C, c 68, s. 67.
These clauses are not in the Imperial Act.
Malice against owner is unnecessary, and the clause
applies to every person in possession of the property in-
jured, if act done with intent to injure or defraud. But in
such a case, it is not necessary to allege that the intent was
to injure or defraud any particular person. — Sections 60,
61, post.
Indictment. — that A. B. on in
unlawfully and maliciously did cut a certain boom then
and there lying on the river called the said boom
being then and there the property of J. S., of against
the form
INJURIES TO POLL BOOKS, ETC.
55. Every one who unlawfully or maliciously destroys, injures or
obliterates, or causes to be wilfully or maliciously destroyed, injured
or obliterated, or makes or causes to be made any erasure, addition
of names or interlineation of names in or upon, or aids, consents or
assists in so destroying, injuring or obliterating, or in making any
erasure, addition of names or interlineation of names in or upon any
writ of election, or any return to a writ of election, or any indenture,
poll book, voters' list, certificate, affidavit or report, or any docu-
ment or paper made, prepared or drawn out according to any law
in regard to provincial, municipal or civic elections, is guilty of
MALICIOUS INJURIES TO PROPERTY. 607
felony, and liable to a fine in the discretion of the court, or to seven
years' imprisonment, or to both. — 29-30 V. (Can.) c. 51, s. 188, part.
R. S. B. C, c. 157, ss. 99 and 100, part.
This clause applies only to writs or documents for pro-
vincial, municipal, or civic elections.
INJURIES TO LAND MARKS.
56. Every one who knowingly and wilfully pulls down, defaces,
alters or removes any mound, land mark, post or monument lawfully
erected, planted or placed to mark or determine the boundaries of any
Province, county, city, town, township, parish or other municipal
division, is guilty of felony, and liable to seven years' imprisonment.
— C. S. C, c. 77, s. 107, part. C. S. V. C, c. 93, s. i,part.
57. Every one who knowingly and wilfully defaces, alters or
removes any mound, land mark, post or monument lawfully placed
by any land surveyor to mark any limit, boundary or angle of any
concession, raDge, lot or parcel of land, is guilty of a misdemeanor,
and liable to a fine not exceeding one hundred dollars, or to three
months' imprisonment, or to both ;
2. Nothing herein shall prevent any land surveyor in his operation
from taking up posts or other boundary marks when necessary, if he
carefully replaces them as they were before. — C- S. C, e. 77, s- 107,
part. C. 8, C. C, c 93, s. 4, part.
The words "pulls down" in sect. 56 are omitted from
sec. 57. " So are the words erected or planted."
The words " by any land surveyors p in sec. 57 are not
in sec. 56.
The misdemeanor mentioned in sec. 57 can only be
committed in relation to boundaries or land marks which
have been legally placed by a land surveyor. — R. v.
Austin, 11 Q. L. R. 76.
INJURIES NOT BEFORE PROVIDED FOR EXCEEDING TWENTY
DOLLARS.
58. Every one who unlawfully and maliciously commits any
damage, injury or spoil to or upon any real or personal property
whatsoever, either of a public or a private nature, for which no
608 MALICIOUS INJURIES TO PROPERTY.
punishment is hereinbefore provided, the damage, injury or spoil
being to an amount exceeding twenty dollars, is guilty of a misde-
meanor, and liable to five years' imprisonment. — 32-33 V-, c. 22, s. 59.
24-25 V., c. 97, s. 51, Imp.
If an attempt to commit the offence only is proved, see
sect. 183 of the Procedure Act. The English act has an
additional enactment giving a greater punishment for
offences committed in the night. Under this section,
evidence of damage committed at several times, in the
aggregate, but not at any one time, exceeding twenty dollars
will not sustain an indictment. — R. v. Williams, 9 Cox,
338.
The injury must directly amount to twenty dollars ; con-
sequential damage cannot be taken into consideration, to
make up that amount. — R. v. Whiteman, 6 Cox, 370 ;
Dears. 353. In R. v. Thoman, 12 Cox, 54, the indict-
ment was as follows That Margaret Thoman, on
the 30th of January, 1871, in and upon three frocks, six
petticoats, one flannel petticoat, one flannel vest, one
pinafore, one jacket, of the value of twenty pounds, of
the property of unlawfully and maliciously did
commit certain damage, injury and spoil to an amount
exceeding five pounds, by unlawfully cutting and des-
troying the same against the form of the statute in such
case made and provided. At the trial, the prisoner's
counsel objected that the indictment was bad, because
the value of the articles damaged was ascribed to them
collectively and not individually. But upon a case re-
served, the indictment was held good, and Bovill, C. J.,
said : " We are all of opinion that it was not material to
allege the value of the several articles in the indictment,
but only that the amount of the damage exceeded five
pounds."
MALICIOUS INJURIES TO PROPERTY. 609
Defendant was indicted for unlawfully and maliciously
committing damage upon a window, in the house of the
prosecutor, against this section. Defendant who had
been fighting with other persons in the street after being
turned out of a public house, went across the street, and
picked up a stone, which he threw at them. The stone
missed them, passed over their heads, and broke a window
in the house. The jury found that he intended to hit one
or more of the persons he had been fighting with, and did
not intend to break the window : Held, that upon this
finding the prisoner was not guilty of the charge within
this section ; to support a conviction of this nature, there
must be a wilful and intentional doing of an unlawful act
in relation to the property damaged. — R. v. PemLliton, 12
Cox, 607. See, on this last case, R. v. Welch, 13 Coat*
121 ; R. v. Faulkner, 13 Cox, 550, and R. v. Latimer, 16
Cox, 70.
The words "real or personal property" mean actual
tangible property, not a mere legal right. — Lawn v. EUring-
ham, 15 Cox, 22.
Upon an information laid before a magistrate under sec.
58 of c. 168, the magistrate cannot find prisoner guilty of
the offence mentioned in next section. (Sec. 59.) Ex parte
Moffet, 9 L. X. 403.
MALICIOUS INJURIES NOT BEFORE PROVIDED FOR.
59. Every one who unlawfully and maliciously commits any
damage, injury or spoil to or upon any real or personal property
whatsoever, either of a public or private nature, for which no punish-
ment is hereinbefore provided, shall, on summary conviction, be
liable to a penalty not exceeding twenty dollars, and such further
sum, not exceeding twenty dollars, as appears to the justice to be a
reasonable compensation for the damage, injury or spoil so com-
mittted, which last mentioned sum of money shall, in the case of
private property, be paid to the person aggrieved ; and if such sums
PP
610 MALICIOUS INJURIES TO PEOPERTY.
of money, together with the costs, if ordered, are not paid, either
immediately after the conviction, or within such period as the justice
shall, at the time of the conviction, appoint, the justice may cause the
offender to be imprisoned for any term not exceeding two months,
with or without hard labor :
2. Nothing herein contained shall extend to any case where the
person acted under a fair and reasonable suppr sition that he had a
right to do the act complained of, or to any trespass, not being wilful
and malicious, committed in hunting or fishing, or in the pursuit of
game ; but every such trespass shall be punishable in the same
manner as if this Act had not been passed :
3. The provisions of this section shall extend to any person who
unlawfully and maliciously commits any injury to any tree, sapling,
shrub or underwood, for which no punishment is hereinbefore pro-
vided.—32-33 V., c 22, ss. 60 and 61. 24-25 V., c. 97, s. 52-53, Imp.
In the Imperial Act, the words " wilfully or maliciously "
stand in lieu of " unlawfully and maliciously"
The application of the penalty, in case the property
injured is of a public nature, has been expunged from this
clause as it stood in the act of 1869. — Sub sect. 3 was
introduced in the Imperial Act in consequence of R. v.
Dodson, 9 A. & E. 704, and Chanter v. Greame, 13 Q.
B. 216.
W. was summoned before the justices under this
clause. He was in the employment of D., and by his
order, he forcibly entered a garden belonging to and in
the occupation of F., accompanied by thirteen other men,
and cut a small ditch, from forty to fifty yards in length,
through the soil. F. and his predecessors in title had
occupied the garden for thirty- six years, and during the
whole time, there had been no ditch upon the site of part
of that cut by D. For the defence D. was called, who
stated that, fifteen years before, there had been an open
ditch in the land, which received the drainage from the
highway, and that he gave directions for the ditch to
MALICIOUS INJURIES TO PROPERTY. 611
be cut by W. in the exercise of what he considered to be a
public right. The justices found that W. had no fair and
reasonable supposition that he had a right to do the act
complained of, and accordingly convicted him : Held, that
by the express words of the section and proviso, the juris-
diction of the justices was not ousted by the mere bona fide
belief of W. that his act was legal, and that there was
evidence on which they might properly find that he
did not act under the fair and reasonable supposition
required by the statute. — White v. Feast, L. R. 7 Q. B.
353.
A conviction by justices under sect. 52, c. 97, 24-25,
V., (sect. 59 of our statute.) cannot be brought up by
certiorari, on the ground that they had no jurisdiction
inasmuch as the defendant had set up a bona, fide claim of
ight, but the exemption i3 impliedly restricted to cases
where the justices are reasonably satisfied of the fair and
reasonable character of the claim. — R. v. Essex, R. v.
d, 26 L. T. 429.
OTHER MATTERS.
60. Every punishment and penalty by this Act imposed on any
person maliciously committing any offence, whether the same is
punishable upon indictment or upon summary conviction, shall
equally apply and be enforced, whether the offence is committed from
malice conceived against the owner of the property in respect of
which it is committed, or otherwise.— 32-33 V., c. 22, s. 66. 2i-'15
V., c. 97, s. 58, Imp.
61. Even' provision of this Act, not hereinbefore so applied, shall
apply to every person who with intent to injure or defraud any person,
does any of the acts hereinbefore made punishable, although the
offender is in possession of the property against or in respect of which
such act is done.— 32-33 V., c. 22, s. 67. 2t-25 V., c. 97, s. 59, Imp.
Greaves says : " This clause is new and a very impor-
tant amendment. It extends every clause of the act not
ina
rig
612 MALICIOUS INJURIES TO PROPERTY.
already so extended (see sect. 3) to persons in possession
of the property injured, provided they intend to injure or
defraud any other person. It therefore brings tenants
within the provisions of the act, whenever they injure the
demised premises, or anything growing on or annexed to
them, with intent to injure their landlords."
By sec. 116, of the Procedure Act, in any indictment
under this act, where it is necessary to allege an intent to
injure or defraud, it is sufficient to allege that the person
accused did the act with intent to injure or defraud, as
the case may be, without alleging an intent to injure or
defraud any particular person.
CHAPTER 173.
AN ACT RESPECTING THREATS, INTIMIDATION
AND OTHER OFFENCES.
H
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
THREATS.
1. Even- one who sends, delivers or utters, or directly or indirectly
causes to be received, knowing the contents thereof, any letter or
writing, demanding of any person with menaces, and without any
reasonable or probable cause any property, chattel, money, valuable
security or other valuable thing, is guiltyof felony, and liable to impris-
onment for life.— 32-33 V., e. 21, s. 43. 24-25 Y., c. 96. s. 44, Imp.
An indictment on this clause should always contain a
count for uttering without stating the person to whom the
letter or writing is uttered. — Greaves, Cons. Acts, 135.
Indictment for sending a letter, demanding money
vAth menaces. — The Jurors for Our Lady the Queen,
upon their oath present, that J. S., on feloniously
did send to one J. N. a certain letter, directed to the said
J. N. by the name and description of Mr. J. N., of
demanding money from the said J. N. with menaces, and
without reasonable or probable cause, he the said J. S. then
well knowing the contents of the said letter; and which
said letter is as follows, that is to say, (here set out the
letter verbatim.) against the form And the jurors
aforesaid, upon their oath aforesaid, do further present, that
the said J. S. on the day and in the year aforesaid, feloni-
ously did utter a certain writing demanding money from
the said J. N. with menaces and without any reasonable
or probable cause, he the said J. S. then well knowing the
contents of the said writing and which said writing is as
614 THREATS, ETC.
follows, that is to say (here set out the writing verbatim,)
against the form — Archbold, 422.
Where the letter contained a request only, but inti-
mated, that, if it were not complied with, the writer would
publish a certain libel then in his possession, accusing the
prosecutor of murder, this was holden to amount to a
demand. — R. v. Robinson, 2 Leach, 749. The demand
must be with menaces, and without any reasonable or pro-
bable cause, and it will be for the jury to consider whether
the letter does expressly or impliedly contain a demand of
this description. The words " without any reasonable or
probable cause " apply to the demand of money, and not to
the accusation threatened by the defendant to be made against
the prosecutor ; and it is, therefore, immaterial in point of
law, whether the accusation be true or not. — R. v. Hamil-
ton, IC.&K. 212; R. v. Gardner, 1 G. & P. 479. A
letter written to a banker, stating that it was intended by
some one to burn his books and cause his bank to stop,
and that if 250 pounds were put in a certain place, the
writer of the letter would prevent the mischief, but if the
money were not put there, it would happen, was held to be
a letter demanding money with menaces. — R. v. Smith, 1
Ben. 510. The judges seemed to think that this decision
did not interfere with R. v. Pickford, 4 C. & P. 227.
Nevertheless, it is said, in Archbold, 424, that it is difficult
to admit that. In R. v. Pickford, the injury threatened
was to be done by a third person. Sect. 6 would now,
cover that case; see post. It is immaterial whether the
menaces or threats hereinbefore mentioned be of violence,
injury or accusation to be caused or made by the offender,
or by any other person. See R. v. Tranchant, 9 L. N.
333.
32-33 V., c. 21, s. 43, makes it a felony to send " any
THREATS, ETC. 615
letter demanding of any person with menaces, and without
any reasonable or probable cause, any money, etc."
Held, that the words " without reasonable or probable
cause " apply to the money demanded, and not to the accu-
sation threatened to be made. — R. v. Mason, 2-4 U. C. C.
P. 58.
2. Every one who, with menaces or by force, deman Is any pro-
perty, chattel, money, valuable security or other valuable tfa
any person, with intent to steal the same, is guilty of felony, and lia-
ble to two years' imprisonment. 32-33 V-, c. 21,5- 14. 24-25 T"., c. 96,
s. 45, Imp.
Indictment. — feloniously with menaces did
demand of J. X. the money of him the said J. X. with
intent the said money from the said J. N. feloniously to
steal, take and carry away, against Archibald, 421.
The prosecutor must prove a demand by the defendant
of the moDey or other thing stated in the indictment (i by
menaces or force " with intent to steal it. It is not neces-
sary to prove an express demand in words ; the statute
says " whosoever with menaces or by force demands," and
menaces are of two kinds, by words or by gestures ; so that,
if the words or gestures of the defendanc at the time ware
plainly indicative of what he required, and tantamount in
fact to a demand, it should seem to be sufficient proof of
the allegation of demand in the indictment. — R. v. Jack-
son, 1 Leach, 269. — If a person, with menaces, demand
money of another, who does not give it him, because he
has it not with him, this is a felony within the statute ; but
if the party demanding the money knows that it is not
then in the prosecutor's possession, and only intends to
obtain an order for the payment of it, it is otherwise. — R.
v. Edwards, 6 C. & P. 515.
The intent to steal must of course be presumed from
616 THREATS, ETC.
circumstances ; it is a question entirely for the jury to
determine, and which they will, in general, have to presume
from the circumstances attending the demand, the expres-
sion or gestures of the prisoner, when he made it, and the
like. — Archbold.
In order to bring a case within this section, the demand,
if successful, must amount to stealing; and to constitute a
menace within this section, it must be of such a nature
as to unsettle the mind of the person upon whom it ope-
rates, and to take away from his acts that element of volun-
tary action which alone constitutes consent ; it must, there-
fore, be left to the jury to say whether the conduct of the
prisoner is such as to have had that effect on the prosecu-
tor; and in this case, the judge having directed the jury
as a matter of law, that the conduct of the prisoner con-
stituted a menace withing the statute, the conviction must
be quashed. — R. v. Walton, L.& C. 288.
In R. v. Robertson, L. & G. 483; 10 Cox, 9, it was
holden that a threat by a policeman to imprison a man
upon a fictitious charge is a menace within this section, and
though the money had in fact been obtained and the pris-
oner could, in consequence, also have been indicted for
stealing the money, yet the conviction, under the present
section, was right. On the ruling in R. v. Walton, swprdy
Greaves remarks : " This decision requires reconsideration,
as it obviously proceeds upon the fallacy of supposing it
necessary that the menaces should be such that if property
were obtained by them, the offence would be larceny.
Now the words of the clause warrant no such construc-
tion."
The words are" Whosoever shall with menaces or by force,
demand any property with intent to steal the same." ( With
menaces not by menaces;) any menaces or any force there-
THREATS, ETC. 617
fore clearly satisfy the terms of the clause, provided there
be an intent to steal. It might just as well be said that
on an indictment for an assault with intent to rob or for
wounding with intent to murder, it was necessary to prove
such an assault in the one case, or such wounding in the
other, as would be sufficient to effectuate the intent, and
yet it has never been doubted that any assault, however
slight, or any wound however trivial, was sufficient, provi-
ded the intent were proved. In truth, the criminality in
these cases depends on the intent. The effect of this deci-
sion is to render the clause almost inoperative, for where
the menaces have not obtained the money, it is plain the
jury will be very reluctaut to find that they were sufficient
to obtain it. The whole offence consists in the acts and
intent of the prisoner ; and it is quite beside that to consi-
der what the effect on the prosecutor might be. — 3 Muss.
203, note by Greaves.
3. Everv one who sends, delivers or utters, or directly or indirectly
causes to be received, knowing the contents thereof, any letter or
writing, accusing or threatening to accuse or cause to be accused any
other person of any crime punishable by law with death, or impris-
onment for not less than seven years, or of any assault with
intent to commit any rape, or of any attempt or endeavor to
commit any rape, or of any infamous crime as hereinafter defined,
with a view or intent, in any of such cases, toextort orgain, by means
of such letter or writing, any property, chattel, money, valuable secu-
rity or other valuable thing from any person, is guilty of felony, and
liable to imprisonment for life :
2. The crime of buggery, committed either with mankind or with
beast, and every assault with intent to commit the said crime, and
every attempt or endeavor to commit the said crime, and every soli-
citation persuasion, promise or threat offered or made to any person
whereby to move or induce such person to commit or permit the said
crime, shall be deemed to be an infamous crime within the meaning
of this Act :
3. Every species of parting with any such letter to the end that it
618 THREATS, ETC.
may come, or whereby it comes into the hands of the person for whom
it is intended, shall he deemed a sending of such letter. — 32-33 V.}
c. 21, s. 45. 24-25 V., c 96, s. 46, Imp.
Sub. sect. 3 is not in the Imperial Act.
Indictment. — The Jurors for Our Lady the Queen,
upon their oath present, that J. S., on feloniously
did send to one J. N., a certain letter, directed to the said
J. N., by the name and description of Mr. J. N., threaten-
ing to accuse him the said J. N"., of having attempted and
endeavored to commit the abominable crime of buggery
with him the said J. S., with a view and intent thereby
then to extort and gain money from the said J. N„, he the
said J. S., then well knowing the contents of said letter,
and which said letter is as follows, to wit (here set out the
letter verbatim) against the form And the jurors
aforesaid, upon their oath aforesaid, do further present, that
the said J. S., on the day and in the year aforesaid felo-
niously did utter a certain writing threatening to accuse
him the said J. N., of having attempted and endeavored
to commit the abominable crime of buggery with him the
said J. S., with a view and intent thereby then to extort
and gain money from the said J- N., he the said J. S., then
well knowing the contents of the said letter, and which
said letter is as follows, to wit (here set out the letter ver-
batim) against the form — Archbold.
An indictment for sending a letter threatening to accuse
a man of an infamous crime, need not specify such crime,
for the specific crime the defendant threatened to charge
might intentionally by him be left in doubt. — R. v.
Tucker, 1 Moo. C. C. 134. The threat may be to accuse
another person than the one to whom the letter was sent.
— Archbold, loc. cit. It is immaterial whether the prose-
cutor be innocent or guilty of the offence threatened to be
THREATS, ETC. 619
imputed to him. — R. v. Gardner, 1 C. & P, 479 ; R. v.
Richards, 11 Cox, 43.
Where it was douhtful from the letter what charge was
intended, parol evidence was admitted to explain it, and
the prosecutor proved that having asked the prisoner what
he meant by certain expressions in the letter, the prisoner
said that he meant that the prosecutor had taken indecent
liberties with his person ; the judges held the conviction
to be right— R. v. Tucker, 1 Moo. C. C. 134.
The court will, after the bill is found, upon the appli-
cation of the prisoner, order the letter to be deposited with
an officer, in order that the prisoner's witnesses may
inspect it. — R. v. Harris, 6 C. <£ P. 105.
In R. v. Ward, 10 Cox, 42, on an indictment containing
three counts for sending three separate letters, evidence of
the sending of one only was declared admissible.
4. Every one who accuses, or threatens to accuse, either the
person to whom such accusation or threat is made or any other
person, of any of the infamous or other crimes lastly hereinbefore
mentioned, with the view or intent, in any of the cases last aforesaid,
to extort or gain from such person so accused or threatened to be
accused, or from any other person, any property, chattel, money,
valuable security or other valuable thing, is guilty of felony, and
liable to imprisonment for life. — 32-33 V., c. 21, a. 46. 24-25 Y.,c.
96, s. 47, Imp.
By sect. 6, post, it is enacted that " it shall be imma-
terial whether the menaces or threats hereinbefore men-
tioned be of violence, injury or accusation, to be caused or
made by the offender or by any other person."
The words " crimes lastly before mentioned " in sect. 4,
mean all those mentioned in sect. 3. — Archbold.
Indictment. — feloniously did threaten one J.
N., to accuse him the said J. N., of having attempted and
endeavored to commit the abominable crime of sodomy
620 THREATS, ETC.
with the said J. S., with a view and intent thereby then
to extort and gain money from the said J. K, against the
form — Archbold.
See the remarks under sections 1, 2, 3, ante. It must
be a threat to accuse, or an accusation ; if J. N. be
indicted or in custody of an offence, and the defendant
threatened to procure witnesses to prove the charge, this
will not be a threat to accuse within the meaning of the
statute. — R. v. QUI, Archbold, 425. But it need not be
a threat to accuse before a judicial tribunal; a threat to
charge before any third person is sufficient. — R. v. Robin-
son, 2 M , & Rob. 14. It is immaterial whether the pro-
secutor be innocent or guilty of the offence charged, and
therefore, although the prosecutor may be cross-examined
as to his guilt of the offence imputed to him, with a view
to shake his credit, yet no evidence will be allowed to be
given, even in cross-examination by another witness, to
prove that the prosecutor was guilty of such offence. — R.
v. Gardner, 1 C. & P. 479 ; R. v. Cracknell, 10 Cox,
408. Whether the crime of which the prosecutor was
accused by the prisoner was actually committed is not
material in this, that the prisoner is equally guilty if he
intended by such accusation to extort money ; but it is
material in considering the question, whether, under the
circumstances of the case, the intention of the prisoner
was to extort money or merely to compound a felony.—
R. v. Richards, 11 Cox, 43. In Archbold, 425, this last
decision seems not to be approved of. — A person threaten-
ing A's father that he would accuse A., of having com-
mitted an abominable offence upon a mare for the purpose
of putting off the mare, and forcing the father, under terror
of the threatened charge to buy and pay for her at the
prisoner's price, is guilty of threatening to accuse within
THREATS, ETC. 621
this section. — R. v. Redman, 10 Cox, 159. On the trial
of an indictment for threatening to accuse a person of an
abominable crime, with intent to extort money, and by
intimidating the party by the threat, in fact obtaining
the money, the jury need not confine themselves to the
consideration of the expressions used before the money
was given, but may, if those expressions are equivocal,
connect with them what was afterwards said by the pris-
oner when he was taken into custody. — R. v. Ka'm, 8 C.
& P. 187.
5. Every one who, with intent to defraud or injure any other per-
son, by any unlawful violence to or restraint of or threat of violence
to or restraint of the person of another, or by accusing or threaten-
ing to accuse any person of any treason, felony or infamous crime, as
hereinbefore defined, compels or induces any person to execute,
make, accept, indorse, alter or destroy the whole or any part of any
valuable security, or to write, impress or affix his name, or the name
of any other person or of any company, firm or co-partnership, or the
seal of any body corporate, company or society, upon or to any paper
or parchment, in order that the same may be afterwards made or
converted into or used or dealt with as a valuable security, is guilty
of felony, and liable to imprisonment for life. — 32-33 V., c. 21, s. 47.
24-25 V., c. 96, s. 48, Imp.
On this clause, Greaves says : "This clause is new. It
will meet all such cases as R. v. Phipoe, 2 Leach, 673,
and R. v. Edwards, 6 C. <L P. 521, where persons by
violence to the person or by threats of accusation of crimes,
induce others to execute deeds, bills of exchange or
other securities.
The defendants, husband and wife, were indicted under
this clause, for having by threats of violence and restraint
induced the prosecutor to write and affix his name to the
following document : " London, July 19th, 1875. I hereby
agree to pay you £100 on the 27th inst, to prevent any
action against me."
622 THREATS, ETC.
Held, that this document was not a promissory note, but
was an agreement to pay money for a valid consideration
which could be sued upon and was therefore a valuable
security. To constitute a valuable security within the
meaning of the statute an instrument need not be nego-
tiable. A wife who takes an independent part in the
commission of a crime when her husband is not present
is not protected by her coverture. — R. v. John, 13 Cox,
100.
See that case as to form of indictment.
This clause, by the consolidation of the statutes, does net
now form part of the Larceny Act, under which the words
" valuable security" are defined.
G. It shall be immaterial whether the menaces or threats herein-
before mentioned are of violence, injury or accusation, to be caused,
or made by the offender or by any other person. — 32-33 V., c. 21,
s.48. 24-25 V., c. 96, «. 49, Imp.
This clause is new, says Greaves ; it is intended to
meet cases where a letter may be sent by one person
and may contain menaces of injury by another, and to
remove the doubts occasioned by R. v. Pickford, 4 G. &
P. 227. In R. v. Smith, 1 Den. 510, the threat by a
person writing a letter of an injury to be made by a third
person was held within the statute, before this clause. Of
course, now, this is clear law, whatever doubts may have
existed heretofore.
7. Every one who maliciously sends, delivers or utters, or directly
or indirectely causes to be received, knowing the contents thereof,
any letter or writing threatening to kill or murder any person, is
guilty of felony, and liable to ten years' imprisonment. — 32-33 V., 0.
20, s. 15. 24-25 V., c 100, s. 16, Imp.
Indictment. — feloniously and maliciously did
send (send, deliver, utter, or directly or indirectly cause
THREATS, ETC. 623
to be received) to one J. X. a certain letter (letter or
vsriting) directed to the said J. N., by the name and
description of Mir. J. X. threatening to kill and murder the
said J. N., he the said (defendant) then well know-
ing the contents of the said letter, which said letter is as
follows, that is to say Against the form
And the jurors aforesaid that the said on
feloniously and maliciously did utter a certain
writing (as in the first count, substituting writing
far letter.) — Archbold, 853.
In R. v. Hunter, 2 Leach, 631, the court said : " In an
indictment for sending a threatening letteT, the letter must
be set out in order that the court may judge from the face
of the indictment whether it is or is not a threatening
letter within the meaning of the statute on which the in-
dictment is founded. "
The same ruling had been held in R. v. Lloyd, 2 East,
p. cum.
Greaves, Crim. L. Cons. Acts, 50, says on this clause :
" The words directly or indirectly causes to be received,
are taken from the 9 Geo. 4, c. 55, s. 8, and introduced
here in order to prevent any difficulty which might arise
as to a case falling within the words send, deliver or utter.
The words to any other person in the 10-11 V., c. 66,
s. 1, were advisedly omitted, in order that ordering, sending,
delivering, uttering, or causing to be received may be
included. If, therefore, a person were to send a letter or
writing without any address by a person with direction to
drop it in the garden of a house in which several persons
lived, or if a person were to drop such a letter or writing
anywhere, these cases would be within this clause. In truth,
this clause makes the offence to consist in sending, etc., any
letter or writing which contains a threat to kill or murder
624 THREATS, ETC.
any person whatsoever, and it is wholly immaterial whe-
ther it be sent, etc., to the person threatened or to any other
person. The cases, therefore, of R. v. Paddle, R. & R. 484 ;
M, v. Burridge, 2 M. & Rob. 296 ; R. v. Jones, -1C.&K.
398 ; 1 Ben. 218 ; and R. v. Grimwade, 1 Den. 30, are
not to be considered as authorities on this clause, so far as
they decide that the letter must be sent, etc., to the party
threatened. In every indictment on this and the similar
clauses in the other acts, a count should be inserted alleging
that the defendant uttered the writing without stating any
person to whom it was uttered. "
Where the threat charged is to kill or murder, it is for
the jury to say whether the letter amounts to a threat
to kill or murder. — R. v. Girdwood, 1 Leach, 142 ; R. v.
Tyler, 1 Moo. G. G 428.
The bare delivery of the letter, though sealed, is evidence
of a knowledge of its contents by the prisoner, in certain
cases. — R. v. Girdwood, 1 Leach, 142.
And in the same case, it was held that the offender may
be tried in the county where the prosecutor received the
letter, though he may also be tried in the county where
the sending took place.
In R. v. Boucher, 4 C. & P. 562, the following letter
was held to contain a threat to murder : — "You are a
rogue, thief and vagabond, and if you had your deserts,
you should not live the week out ; I shall be with you
shortly, and then you shall nap it, my banker. Have a care
old chap, or you shall disgorge some of your illgotten
gains, watches and cash, that you have robbed the widows
and fatherless of. Don't make light of this, or I'll make
light of you and yours. Signed, Cutthroat"
Where an indictment contained three counts, each charg-
ing the sending of a different threatening letter, Byles,
THREATS, ETC. 625
J., held that the prosecutor must elect on which count he
would proceed, though any letter leading up to or explain-
ing the letter on which the trial proceeded would be
admissible.— JB. v. Ward, 10 Cox, 42.
8. Everyone who sends, delivers or utters, or directly or indirectly
causes to be received, knowing the contents thereof, any letter or
writing threatening to burn or destroy any house, barn or other
building, or any rick or stack of grain, hay or straw or other agricul-
tural produce, or any grain, hay or straw or other agricultural produce,
in or under any building, or any ship or vessel, or to kill, maim,
wound, poison or injure any cattle, is guilty of felony, and liable to
ten years' imprisonment. — 32-33 F.,c 22,*. 58. 24-25 V., c 97, s. 50,
Imp.
The words "poison or injure " are not in the Imperial
Act.
A threat to burn standing corn is not within the statute.
— R. v. Hill, 5 Cox, 233.
It was held that a letter the necessary construction of
which was not a threat to burn was not within the statute.
— R. v. Jepson, 2 East, 1115, note a.
See, ante, for form of indictment, under preceding section.
9. Every one who, in pursuance of any unlawful combination or
conspiracy to raise the rate of wages, or ot any unlawful combination
or conspiracy respecting any trade, business or manufacture, or
respecting any person concerned or employed therein, unlawfully
assaults any person, or in pursuance of any stick combination or
conspiracy, uses any violence or threat of violence to any person, with
a view to hinder him from working or being employed at such trade,
business or manufacture, is guilty of a misdemeanor, and liable to
imprisonment for any term less than two years. — 32-33 F, c. 20, s.
42. 24-2.3 V., c. 100, s. 41, Imp., repealed by 34-35 F, c. 32, Imp.
which is repealed by 38-39 F, c. 86, Imp.
The words in italics are not in the English act. They
cover any violence or threat of violence with a view to
hinder any person from working or being employed at a
trade, business or manufacture, in pursuance of a com-
QQ
G26 THREATS, ETC.
bination or conspiracy respecting such trade, business or
manufacture.
Indictment for an assault in pursuance of a conspiracy
to raise wages. — The Jurors for Our Lady the Queen
upon their oath present, that J. S., J. W., and E. W., on
did amongst themselves conspire, combine, confe-
derate, and agree together to raise the rate of wages then
usually paid to workmen and laborers in the art, mystery
and business of cotton spinners; and that the said
(defendants) in pursuance of the said conspiracy, on the
day and year aforesaid, in and upon one J. N., unlawfully
did make an assault, and him the said J. N., did then beat,
wound and ill-treat, and other wrongs to the said J. N".,
did, to the great damage of the said J, N., against the
form (Add a count stating that the defendants
assaulted J. iVr., " in pursuance of a certain conspiracy
"before then entered into by the said (defendants)
to raise the rate of wages of workmen and laborers in
the art, mystery and business of cotton-spinners ;" also a
count for a common assault.) — Archbold.
For a number of workmen to combine to go in a body
to a master and say that they will leave the works, if he
does not discharge two fellow workmen in his employ, is
an unlawful combination by threats to force the prosecutor
to limit the description of his workmen. — Walsby v. Auley,
3 E. & E. 516. And a combination to endeavor to force
workmen to depart from their work by such a threat as
that they would be considered as blacks, and that other
workmen would strike against them all over London, is
unlawful. — In re Perham, 5 H. & N. 30. So also is a
combination with a similar object to threaten a workman
by saying to him that he must either leave his master's
employ, or lose the benefit of belonging to a particular
THREATS, ETC. 627
club and have his name sent round all over the country. —
O'Xei! v. Longman, 4 B. <£ S. 376. An indictment or
commitment alleging the offence to be a conspiracy to force
workmen to depart from their work by threats need not
set out the threats. — In re Perham, supra.
See R. v. Rowlands, 2 Den. 364. — Also, Roscoe, 390.
10. Every one who beats or uses any violence or threat of violence
to any person, with intent to deter or hinder him from baying, selling
or otherwise disposing of any wheat or other grain, flour, meal, malt
or potatoes or other produce or goods, in any market or other place,
or beat^> or uses any such violence or threat to any person having the
charge or care of any wheat or other grain, flour, meal, malt or
potatoes, whilst on the way to or from any city, market, town or other
place, with intent to stop the conveyance ol the same, shall, on sum-
mary conviction before two justices of the peace, be liable to impr -
ment,with hard labor, for any term not exceeding three months. 32-33
V., c. 20, s. 40. 24-25 V., c. 100, s. 39 Imp.
"11. Every person who unlawfully and by force or threats of
violence, hinders or prevents or attempts to hinder or prevent any
8eaman, stevedore, ship carpenter, ship laborer or other jierson
employed to work at or on board any ship or vessel, or to do anv
work connected with the loading or unloading thereof, from working
at or exercising any lawful trade, busine-s. calling or occupation in or
for which he is so employed ; or bear- .my violence to, or
makes any threat of violence against any -uch person, with intent to
hinler or prevent him from working at or exercising the same, or on
account of his having worked at or exercised the same, shall, on sum-
mary conviction before two justices of the p^ace, be liable to imprison-
ment, with hard labor, for any term not exceeding three months.'' —
as amended by 50-51 P, c 47. 24-25 V., q. 100, s. 40, Imp.
12. Every one who, wrongfully and without lawful authority,
witti a view to compel any other person to ab-tain from doing anything
which he has a lawful right to do, or to do anything from which he
has a lawful right to abstain,
(a.) Uses violence to such other person, or his wife or children, or
injures his property,
(b.) Intimidates such other person, or his wife or children, by
threats of using violence to him, her or any of them, or of injuring
his property,
628 - THREATS, ETC.
(c.) Persistently follows such other person about from place to
place,
(d.) Hides any tools, clothes or other property owned or used by
such other person, or deprives him or hinders him iu the use thereof,
(e.) Follows such other person, with one or more other persons, in
a disorderly manner, in or through any street or road, or,
(f.) Besets or watches the house or other place where such other
person resides or works, or carries ou business or happens to be,
Shall, on summary conviction before two justices of the peace, or
on indictment, be liable to a fine not exceeding one hundred dollars,
or to imprisonment for a term not exceeding three months.
2. Attending at or near or approaching to such house or other
place as aforesaid, in order merely to obtain or communicate informa-
tion shall not be deemed a watching or besetting within the meaning
of this section ;
3. Any person accused of any such offence may, on appearing
before the justices, declare that he objects to being tried for such
offence by such justices ; and thereupon such justices shall not proceed
with such trial, but may deal with the case in all respects as if the
accused was charged with an indictable offence and not with an
offence punishable on summary conviction, and the accused may be
prosecuted on indictment accordingly ;
4. It shall be sufficient to describe any such offence in the words
of this section ; and any exception, proviso, excuse or qualification,
whether it does or does not accompany the description of the offence,
may be proved by the defendant, but need not be specified in the
information or complaint, and if so specified and negatived, no proof
in relation to the matter so specified and negatived shall be required
on the part of the informant or prosecutor ;
5. No person who is a master, or the father, son or brother of a
master in the particular manufacture, trade or business, in or in
connection with which any offence under this section is charged to
have been committed, shall act as a magistrate or justice, in any case
of complaint or information under this section, or as a member of any
court for hearing any appeal in any such case. — 35 V., c.31, s. 2, part,
and s. 4. 39 V., c- 37, ss. 2 and 3. 38-39 V., c. 86, s. 9, part, Imp.
13. In this section the expression " trade combination " means any
combination between masters or workmen or other ptrsons, for regu-
THREATS, ETC. 629
lating or altering the relations between any persons being masters or
workmen, or the conduct of any master or workman, in or in respect
of his business or employment, or contract of employment or service;
and the expression " act" includes a default, breach or omission ;
2. No prosecution shall be maintainable against any person for
conspiracy to do any act, or to cause any act to be done for the
purposes of a trade combination, unless such act is an offence
punishable by statute. — 39 V., c. 37, s. 4.
14. Every person who, before or at the time of the public sale of
any Indian lands, or public lands of Canada, or of any Province of
Canada, by intimidation, combination or unfair management, hinders
or prevents, or attempts to hinder or prevent, any person from bidding
upon or purchasing any lands so offered for sale, is guilty of a
misdemeanor, and liable to a fine not exceeding four hundred dollars
or to two years' imprisonment, or to both. — 23 V. {Can.), c. 2, s. 33.
43 V., c. 28, s. 55.
CRIMINAL BREACHES OF CONTRACT.
15. Every one who, —
(a.) Wilfully and maliciously breaks any contract made by him,
knowing or having reasonable cause to believe that the probable
consequences of his so doing, either alone or in combination with
others, will be to endanger human life, or to cause serious bodily
injury, or to expose valuable property, whether real or personal, to
destruction or serious injury,
(6.) Being under any contract made by him with any municipal
corporation or authority, or with any company bound, agreeing or
■Winning to supply any city or any other place, or any part thereof,
with gas or water, wilfully and maliciously breaks such contract,
knowing or having reasonable cause to believe that the probable
consequences of his so doing, either alone or in combination with
others, will be to deprive the inhabitants of that city or place, or
part thereof, wholly or to a great extent, of their supply of gas or
water, or,
(c.) Being under any contract made by him with a railway com-
pany, bound, agreeing or assuming to carry Her Majesty's mails, or
to carry passengers or freight ; or with Her Majesty, or any oue on
behalf of Her Majesty, in connection with a Government railway on
which Her Majesty's mails, or passengers or freight are carried,
wilfully and maliciously breaks such contract, knowiug or having
630 THEE ATS, ETC.
reason to believe that the probable consequences of his so doing, either
alone or in combination with others, will be to delay or prevent the
running of any locomotive engine, or tender, or freight or passenger
train or car, on the railway,
Shall, on summary conviction before two justices of the peace, or
on indictment, be liable to a penalty not exceeding one hundred
dollars, or to imprisonment for a term not exceeding three months,
witli or without hard labor.— 40 V., c. 35, s. 2. 38-39 V., c. 86, ss. 4
and 5, Imp.
16. Every municipal corporation or authority or company which,
being bound, agreeing or assuming to supply any city or any other
place, or any part thereof, with gas or water, wilfully and maliciously
breaks any contract made by such municipal corporation, authority,
or company, knowing or having reason to believe that the probable
consequences of its so doing will be to deprive the inhabitants of that
city or place or part thereof, wholly, or to a great extent, of their
supply of gas or water, is liable to a penalty not exceeding one
hundred dollars. — 40 V., c. 35, s. 3, part.
17. Every railway company which, being bound, agreeing or
assuming to carry Her Majesty's mails, or to carry passengers or
freight, wilfully and maliciously breaks any contract made by such
railway company, knowing or having reason to believe, that the
probable consequences of its so doing will be to delay or prevent the
running of any locomotive engine or tender, or freight or passenger
train or car, on the railway, is liable to a penalty not exceeding one
hundred dollars. — 40 V., c. 35, s. 3 part.
18. Every punishment under the three sections next preceding
imposed on any person maliciously committing any offence, shall
equally apply and be enforced, whether the offence is committed from
malice conceived against the person, corporation, authority or
company with which the contract is made or otherwise. — 40 V-, c 35,
s.4.
19. Every such municipal corporation, authority or compan)',
shall cause to be posted up at the gas works, or water-works, or
railway stations, as the case may be, belonging to such corporation,
authority or company, a printed copy of this section and the four
sections next preceding, in some conspicuous place, where the same
may be conveniently read by the public ; and as often as such copy
becomes dpfaced, obliterated or destroyed, shall cause it to be renewed
with all reasonable despatch ;
THREATS, ETC. 631
2. Every such municipal corporation, authority or company which
makes default in complying with the provisions of this section in
relation to such copy as aforesaid, shall be liable to a penalty not
exceeding twenty dollars for every day during which such default
continues ; and every person unlawfully injuring, defacing or covering
up any such copy so posted up, shall be liable, on summary convic-
tion, to a penalty not exceeding ten dollars. — 10 V., c. 35, s. 7. 38-39
T~, c. 86, *. 4, Imp.
FRAUDS WITH RESPECT TO CONTRACTS AND BUSINESS WITH
THE GOVERNMENT.
20. Every one who makes auy offer, proposal, gift, loan, promise,
agreement, compensation or consideration, directly or indirectly, to
any officer or person in the employment of the Government of
Canada, or of any Province of Canada, with intent to secure the
influence of such officer or person to promote either the obtaining or
the execution of any contract with such government, or the payment
of the consideration moneys therefor, and —
Every officer or person in the employment of such government,
who accepts, or agrees to accept, any such offer, proposal, gift, loan,
promise, agreement, compensation or consideration,
Is guilty of a misdemeanor and liable to a fine not exceeding one
thousand dollars and not less than one hundred dollars, and to impris-
onment for a term not exceeding one year and not less than one
month, and in default of payment of such fine, to imprisonment for a
further term not exceeding six mouth-. — 16 V., c. 32, s. 1.
21. Every one who, in the case of tenders being called for by or
on behalf of the Government of Canada, or of any Province of Canala,
for any contract, directly or indirectly, by himself or by the agency
of any other person on his behalf, with intent to obtain such contract,
either for himself or for any other person, proposes or makes any gift,
loan, offer, promise or agreement, or offers or gives any consideration
>r compensation whatsoever, to any person tendering for such contract,
>r to any officer or person in the employment of such government,
and
Every person so tendering and every officer or person in the employ-
ment of the said government who accepts or agrees to accept any such
jift, loan, offer, promise, agreement, consideration or compensation
whatsoever,
632 THREATS, ETC.
Is guilty of a misdemeanor, and liable to a fine not exceeding one
thousand dollars and not less than one hundred dollars, and to
imprisonment for a term not exceeding one year and not less than one
month, and, in default of payment of such fine, to imprisonment for a
further term not exceeding six months. — 46 V., c. 32, s. 2.
22. Every one who, being a public officer or paid employee of the
Government of Canada, or of any Province of Canada, receives,
directly or indirectly, any promise, offer, gift, loan, compensation or
consideration whatsoever, either in money or otherwise, from any
person whomsoever, for fraudulently assisting or favoring any
individual in the transaction of any business whatsoever connected
with such government, or for doing so contrary to the duties of his
special position as an officer or employee of the government, is guilty
of a misdemeanor, and liable to a fine not exceeding two thousand
dollars, and shall be incapable, for the term of five years, of holding
any public office ; and every one who makes such offer shall be liable
to the same penalty. — 46 V., c. 32, s. 3.
23. Every person convicted of any offence under the provisions of
the three sections next preceding shall be incapable of contracting
with or holding any contract under any of the said governments. — 46
V., c 32, s. 4.
24. No prosecution under the provisions of the four sections next
preceding shall be commenced except within two years from the
commission of the offence. — 46 V., c. 32, s. 5.
WILFUL VIOLATION OF STATUTES.
25. Every wilful violation of any Act of the Parliament of Canada,
or of the Legislature of any Province of Canada, which is not made
an offence of some other kind, shall be a misdemeanor, and punishable
accordingly ;
2. Whenever any wilful violation of any Act is made an offence of
any particular kind or name, the person guilty of such violation shall,
on conviction thereof, be punishable in the manner in which such
offence is, by law, punishable. — 31 V., c. 1, s. 7, paragraphs 20 and
21. 31 V., c. 71, s. 3.
See R. v. Walker, 13 Cox, 94.
CONSPIRACIES — FRAUDS.
26. Every one who is convicted of fraud, or of cheating, or of
conspiracy, shall, in any case in which no special punishment is
THREATS, ETC. 633
provided by any statute, be liable to seven years' imprisonment. —
32-33 V., c'29, s. 86.
The Imperial Act, 14-15 V., e. 100, sec. 29 (Lord
Campbell's Act,) also provides for the punishment of cheats,
frauds and conspiracies, not otherwise specially provided for.
In R. v. Roy, 11 L. C. J. 89, Mr. Justice Drummond
said : " The only cheats or frauds punishable at common
law are the fraudulent obtaining of the property of another
by any deceitful and illegal practice, or token, ichich affects
or may affect the public, or such frauds as are levelled
against the public justice of the realm."
It is not every species of fraud or dishonesty in transac-
tions between individuals which is the subject matter of a
criminal charge at common law. — 2 East, P. C. 816.
Fraud, to be the object of criminal prosecution, must be
of that kind which in its nature is calculated to defraud
numbers, as false weights or measures, false tokens, or
■where there is a conspiracy ; per Lord Mansfield. — R. v.
Wlieatly, 2 Burr. 1125.
So cheats, by means of a bare lie, or false affirmation in
a private transaction, as if a man selling a sack of corn
falsely affirms it to be a bushel, where it is greatly defi-
cient, has been holden not to be indictable. — R. v. Pink-
<ney, 2 East, P. C. 818.
So, in R. v. Channell, 2 East, P. C. 818, it was held
that a miller charged with illegally taking and keeping
corn could not be criminally prosecuted.
And in R. v. Lara, cited in 2 East, P. C. 819, it was
held that selling sixteen gallons of liquor for and as
eighteen gallons, and getting paid for the eighteen gallons,
was an unfair dealing and an imposition, but not an indict-
able offence.
The result of the cases appears to be, that if a man sell
634 THREATS, ETC.
by false weights, though only to one person, it is an indict-
able offence, but if, without false weights, he sell, even to
many persons, a less quantity than he pretends to do, it
is not indictable. — 2 Russ. 610 ; R. v. Eagleton, Dears.
376, 515.
If a man, in the course of his trade, openly and publicly
carried on, were to put a false mark or token upon an
article, so as to pass it off as a genuine one, when in fact it
was only a spurious one, and the article was sold and
money obtained by means of that false token or mark, that
would be a cheat at common law, but the indictment, in
such a case, must show clearly that it was by means of
such false token that the defendant obtained the money ;
by Chief Justice Cockburn, in R. v. Gloss, Dears. & B.
460.
Offences of this kind would now generally fall under the
ft Trade Marks Offences Act."
Frauds and cheats by forgeries or false pretences are
also regulated by statute.
All frauds affecting the crown or the public at large are
indictable, though arising out of a particular transaction or
contract with a private party. So the giving to any person
unwholesome victuals, not fit for man to eat, lucri causd,
or from malice and deceit is an indictable misdemeanor. —
2 East, P. C. 821, 822. And if a baker sell bread con-
taining alum in a shape which renders it noxious, although
he gave directions to his servants to mix it up in a manner
which would have rendered it harmless, he commits an
indictable offence ; he who deals in a perilous article must
be wary how he deals ; otherwise, if he observe not proper
caution, he will be responsible. The intent to injure in such
cases is presumed, upou the universal principle that when
a man does an act of which the probable consequence may
THKE.VTS, ETC. 635
be highly injurious, the intention is an inference of law
resulting from doing the act. — B. v. Dixon, 3 M. & S. 11.
If a person maim himself in order to have a more spe-
cious pretence for asking charity, or to prevent his being
enlisted as a soldier, he may be indicted, and on convic-
tion, punished under sect. 26, ante. — 1 Hawkins, 108.
Cheating at games, cards, or in betting are provided for
by sect. 80 of the Larceny Act, p. 442, ante.
In indictments for a cheat or fraud at common law, it is
not sufficient to allege generally that the cheat or fraud
was affected by means of certain false tokens or false pre-
tences, but it is necessary to set forth what the false tokens
or pretences were, so that the Court may see if the false
tokens or pretences are such within the law. 2 East, P. C.
837. But the indictment will be sufficient if upon the
whole it appears that the money has been obtained by
means of the pretence set forth, and that such pretence
was false.— 2 East, P. C. 838.
It would seem that sec. 250 of the Procedure Act does
not apply to cheats and frauds at common law, and that,
therefore, the court has no power of awarding restitution
of the property fraudulently obtained, upon convictions on
indictments other than those brought under the Larceny
Act— 2 East, P. C. 839.
Upon an indictment for any misdemeanor, if it appears
to the jury upon the evidence that the defendant did not
complete the offence charged, but that he was guilty only
of an attempt to commit the same, the jury may convict
of the attempt; sec. 183, Procedure Act.
By sect. 184 of the Procedure Act, if upon the trial of
any person for any misdemeanor, it appears that the facts
given in evidence, while tliey include such misdemeanor,
amount in law to a felony, such person shall not, by reason
636 THREATS, ETC.
thereof, be entitled to be acquitted of such misdemeanor,
unless the court thinks fit to discharge the jury, and to
direct such person to be indicted for felony.
The act now under consideration also provides for the
punishment of conspiracy, when not otherwise specially
provided for by any statute.
Conspiracies to murder are provided for by sec. 3 of c.
162, p. 141, ante, concerning offences against the person.
Assaults arising from conspiracies are regulated by sec. 9,
c. 173.
Conspiracy is a combination of two or more persons to
accomplish some unlawful purpose, or a lawful purpose by
unlawful means. This is the definition of conspiracy as
given by Lord Denman in R. v. Seward, 1 A. & E. 706 ; and
though questioned by the learned judge himself in R. v.
Peck, 9 A. & E. 686, as an antithetical definition, and in
R. v. King, 7 Q. B. 782, as not sufficiently comprehensive,
it seems to be so far adopted as the most correct definition
of this offence. — R. v. Jones, 4 B. & A. 345 ; 3 Russ. 116.
Bishop, 2, Cr. L. 171, has in a clear and concise manner
said " Conspiracy is the corrupt agreeing together of two
or more persons to do, by concerted action, something un-
lawful, either as a means or an end." See also R. v. Bunn,
12 Cox, 316.
• But the word "unlawful" used in these definitions of
conspiracy, does not mean " indictable " or u criminal."
The combining to injure another by fraud, or to do a civil
wrong or injury to another is an indictable conspiracy. So
in a case where the prisoner and L. were in partnership, and
there being notice of dissolution, prisoner conspired with
W. & P. in order to cheat L. on a division of assets at the
dissolution, by making it appear by entries in the books
that P. was a creditor of the firm, and by reason thereof,
THREATS, ETC. 637
partnership property was to be abstracted for the alleged
object of satisfying P., it wa3 held by the Court of Crown
Cases Reserved that this was an indictable conspiracy. — R.
v. Warburton, 11 Cox, 584. See R. v. Aspinall, 13 Cox,
231 and 563 ; R. v. Orman, 14 Cox, 381,
Mr. Justice Drummond, in R. v. Roy, 11 L. C. J. 89,
has given the following definition of conspiracy : " A con-
spiracy is an agreement by two persons (not being husband
and wife), or more, to do or cause to be done, an act, pro-
hibited by penal law, or to prevent the doing of an act
ordered under legal sanction by any means whatsoever, or
to do or cause to be done an act whether lawful or not by
means prohibited by penal law." — R. v. Boulton, 12 Cox,
87 ; R. v. Parnell, 14 Cox, 508 ; R. v. Taylor, 15 Cox,
625, 268.
No indictment for conspiracy can be preferred unless
one or other of the preliminary steps required by sec. 140
of the Procedure Act has been taken. See 3 Russ. 116;
Arrh.bold, 936 ; R. v. Levine, 10 Cox, 374; R. v. Lewis,
11 Cox, 404; R. v. Boulton, 12 Cox, 87; 2 Bishop, Cr.
L. 169.
On an indictment for conspiracy to defraud by obtaining
goods on false pretences, the false pretences need not to set
up. — Thayer v. JR., 5 L. N. 162.
An indictment for conspiracy with intent to defraud, —
declared insufficient. — R. v. Sternberg, 8 L. X. li'_'.
What are the necessary allegation in an indictment for
conspiracy. — R. v. Doivnie, 13 R. L. 429. — See also
Defoy v R., Ramsay's App. Cos. 193.
Acts done to coerce others to quit their employment in
pursuance of a conspiracy are indictable. — R. v. Hibbert,
13 Cox, 82; R. v. Bauld, 13 Cox, 282.
638 THREATS, ETC.
Where two persons are indicted for conspiring together,
and they are tried together, both must be acquitted or both
convicted. — E. v. Manning, 12 Q. B. B. 241.
27. Every one who destroys, alters, mutilates or falsifies any of his
books, papers, writings or securities, or makes, or is privy to the
making of any false or fraudulent entry in any book of account or
other document, with intent to defraud his creditors, or any one or
more of them, is guilty of a misdemeanor, and liable to six months'
imprisonment. — C, S. U. C, c. 26, s. 19.
28. Every one who makes, or causes to be made, any gift, con-
veyance, assignment, sale, transfer or delivery of his lands, heredita-
ments, goods or chattels, or who removes, conceals or disposes of any
of his goods, chattels, property or effects of any description, with intent
to defraud his creditors or any of them, and every one who receives
any such property, real or personal, with such intent, is guilty of a
misdemeanor, and liable to a fine not exceeding eight hundred dollars,
and to one year's imprisonment. — C. S- U. C, c. 26, s. 20.
MISCONDUCT OF OFFICERS INTRUSTED WITH EXECUTION
OF WRITS.
29. Every one who, being a sheriff, deputy sheriff, coroner, elisor,
bailiff, constable or other officer intrusted with the execution of any
writ, warrant or process, wilfully misconducts himself in the execution
of the same, or wilfully and without the consent of the person in
whose favor tne writ, warrant or process was issued, makes any false
return thereto, is guilty of a misdemeanor, and liable to a fine and
imprisonment, in the discretion of the court. — 27-28 V-, (Can.) c. 28>
s. 31, part.
EMBRACERY.
30. Every one who is guilty of the offence of embracery, and every
juror who wilfully and corruptly consents thereto, is liable, on indict-
ment, to hue and imprisonment. — C- S. D- C, c. 31, s. 166.
QUI TAM ACTIONS — QUEBEC.
31. Every private prosecutor in the Province of Quebec who, being
a plaintiff in a qui tarn action, discontinues or suspends such action
without the permission or direction of the Crown, is guilty of a misde-
meanor .—2 7- 28 V. (Can.), c 43, s. 2, part.
THKEATS, ETC. 639
It is essential to the existence of this offence of embra-
cery that there should be a judicial proceeding pendiug at
the time the offence is alleged to have been committed ; and
the existence of such proceeding must be alleged in the
indictment. — R. v. Leblanc, 8 L. X. 114.
What is embracery. — R. v. Cornellier, 29 L. C. J. 69.
CHAPTER 174.
AN ACT RESPECTING PROCEDURE IN CRIMINAL
CASES.
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
H
SHORT TITLE.
1. This Act may be cited as " The Criminal Procedure Act."
INTERPRETATION.
2. In this and in any other Act of Parliament containing any
provision relating to criminal law, unless the context otherwise
requires, —
(a.) The expression u any Act," or, " any other Act," includes any
Act passed or to be passed by the Parliament of Canada, or any Act
passed by the legislature of the late Province of Canada, or passed or
to be passed by the legislature of any Province of Canada, or passed
by the legislature of any Province included in Canada, before it was
included therein ;
(6.) The expression "justice" means a justice of the peace, and
includes two or more justices, if two or more justices act or have
jurisdiction, and also any person having the power or authority of
two or more justices of the peace, and one justice may act, unless
otherwise specially provided ;
(c.) The expression " indictment" includes information, inquisition
and presentment as well as indictment, and also any plea, replication
or other pleading, and any record ;
(d) The expression " finding of the indictment" includes also the
taking of an inquisition, the exhibiting an information and the making
of a presentment ;
(e.) The expression u property " includes goods, chattels, money,
valuable securities, and every other matter or thing, whether real or
personal, upon or with respect to which any offence may be com-
mitted ;
(f.) The expression " district, county or place " includes any divi-
PROCEDURE ACT. 641
eion of any Province of Canada, for purposes relative to the adminis-
tration of justice in criminal cases ;
(g ) The expression ** territorial division" means county, union of
counties, township, city, town, parish or other judicial division or
place to which the context applies ;
(h.) The expression " the court for crown cases reserved " means
and include?, —
(I.) In the Province of Ontario, any division of the High Court of
Justice for Ontario ;
(2.) In the Province of Quebec, the Court pf Queen's Bench, on the
appeal side thereof ;
(3.J In the Provinces of Nova Scotia, New Brunswick and British
Columbia, the Supreme Court in and for each of the said Provinces,
respectively ;
(4.) In the Province of Prince Edward Island, the Supreme Court of
Judicature for that Province ;
(5.) In the Province of Manitoba, Her Majesty's Court of Queen's
Bench for Manitoba ; and —
(6.) In the Northwest Territories, the Supreme Court of the
Northwest Territories. — 32-33 V., c- 29, *. 1, part and c. 30, s. 65.
46 T ., c. 10, s. 5, part. 49 P., c 25, s. 14. C.S.L.C., « 77, s. 57,
part. R. 8. xY. 6'. (3rd 8.) c. 171, «. 99, part. 1 E. S. N.B., c
159, s. 22, part.
JURISDICTION.
3. Every superior court of criminal jurisdiction shall have power
to try any treason, felony or other indictable offence. — 34 V., c. 14,
*. 2." 37 V., c. 42, s. 5. 40 V., c. 4, *. 4, part.
4. No court of general or quarter sessions or recorder's court, nor
any court but a superior court having criminal jurisdiction, shall
have power to try any treason, or any felony punishable with death
or any libel.— 32-33 V-, c. 29, *. 12.
Iii Canada, the courts of general or quarter sessions
have jurisdiction in all cases except treason, murder,
rape, libel, offences under sects. 21, 22 and 23 of c. 162,
(sec. 5 Procedure Act,) offences under sects. 60 to 76,
RR
642 PROCEDURE ACT.
both inclusive, of c. 164 (sec. 6 Procedure Act,) perjury,
subornation of perjury, and forgery, by common law ;
counterfeiting coin (probably) which was treason by
different statutes (1 East, P. C. 158;, 2 Hale, 44, 45; 25
Edw. Ill, c. 7, s. 7.), bribery, under influence, persona-
tion or other corrupt practices in elections for Parliament
(sect. 116, c. 8, Kev. Stat.) offences against sects. 6, 7 and
8 of c. 146.
The following passage from Archbold's Quarter Sessions,
p. 5, on the jurisdiction of the courts of quarter sessions,
explains fully what our law is on the subject, indepen-
dently of statutory enactments.
" Some doubts were formerly entertained as to the con-
struction that ought to be give to the words ' Felonies ' and
' Trespasses ' in the above commission ; some held that
they included only such felonies and misdemeanors against
the peace, of which cognizance was given to justices of the
peace by the express words of a statute or statutes ; others
held that as the commission was created by statute,
namely, in pursuance of stat. 34 Ed. III., c. 1, these words
must be deemed to include only such offences as were felo-
nies and trespasses at the time of the passing of the act,
and that if justices have jurisdiction of any offence created
since, it must be give to them by the express words of the
statute creating the offence. But these constructions seem
very unsatisfactory ; if, according to the first of them, we are
to hold that the courts of quarter sessions are to exercise juris-
diction only in those cases where cognizance of an offence
is specially given them by some statute, the court will
have cognizance of very few offences indeed, and no juris-
diction in most of the cases in which we see them contin-
ually exercise it ; and if, according to the second con-
struction, we confine their authority under the commission
PROCEDURE ACT. 643
to offences which were felonies and trespasses at the time of
passing the statute 34 Ed. III., c. 1, then we shall have
the absurdity of a commission being granted in the nine-
teenth century to justices giving them authority to hear
and determine such offences only as were felonies and tres-
passes in the year 1360. There is nothing in the act itself
or the commission, which at all obliges us to give them
so narrow a construction ; and in modern times the general
opinion of the profession, sanctioned by cases which shall
presently be mentioned, is, that with the exception of
perjury at common law and forgery, the court of quarter
sessions has jurisdiction by virtue of the commission of all
felonies whatsoever, murder included, though not specially
named, and of all indictable misdemeanors, whether created
before or after the date of the commission. In fact, the only
restriction upon their jurisdiction up to the time of the
passing of the 5-6 V., c. 33 (30th June, 1842), hereafter
mentioned, appears to have been the proviso contained in
the commission of the peace ; but if they thought fit, even
in capital cases, to proceed to judgment, such judgment
would have been valid until reversed for real error in the
judgment, or for substantial defect appearing on the face of
the record. As to the word ' trespasses,' the word used,
when the commissions were in Latin, was ' transg,
which was a word of very general meaning, including all
the inferior offences under felony, and also those injuries
for which the modern action of trespass now lies ; it was
usually rendered into law French, by the word ' tresp I s,'
and that is the word used in the original French of the above
statute of Ed. III., and it is there rendered into English
by the word 'trespasses.' In perjury at common law, it is
indeed settled, that an indictment will not lie for it in a court
of quarter sessions; but perjury under the statute 5 Eliz.,
644 PROCEDURE ACT.
c. 9, is within the jurisdiction of the sessions, by the
express words of the act. Forgery at common law also is
not cognizable by the sessions ; nor is forgery by statute,
as we shall see presently, when we come to consider the
jurisdiction of the sessions by statute. Where an indict-
ment for soliciting a servant to steal the goods of his master
was removed into the Court of King's Bench by wiit of
error, it was argued that the facts charged in the indict-
ment did not amount to an offence at common law, or if
they did, still it was not an offence indictable at sessions,
as it was no breach of the peace. As to the first point,
the court held clearly that the facts stated did amount to
an indictable offence ; as to the second point, Lord Kenyon
C. J., said : " I am also clearly of opinion that it is indicta-
ble at the quarter sessions, as falling in with that class of
offences, which being violations of the law of the land, have
a tendency, as it is said, to a breach of the peace, and are?
therefore, cognizable by that jurisdiction; to this rule there
are, indeed, two exceptions, namely, forgery and perjury,
why exceptions, I know not, but having been expressly
so adjudged, I will not break through the rules of law ; no
other exceptions, however, have been allowed, and there-
fore this falls within the general rule." The other judges
being of the same opinion, the judgment was accordingly
affirmed. So where an indictment for a conspiracy to
charge a man with taking hair out of a bag belonging to
one A. K. was preferred and found at sessions, and the
parties convicted upon it ; and it was afterwards removed
into the Court of King's Bench by certiorari, and a motion
was then made in arrest of judgment, on the ground that the
sessions had no jurisdiction of conspiracy, any more than
of perjury and forgery, it not being specified in their com-
mission, nor jurisdiction of it given to them by any special
PROCEDURE ACT. 645
statute ; the court, however, held that the sessions had
j urisdiction.
Lord Mansfield, C. J., said that as no case had been cited
to show whether the sessions had or had not jurisdiction,
the question must be decided upon general principles ;
that as to the cases of perjury and forgery, mentioned in
argument, they stood upon their own special grounds, and
it had been determinad that justices had no jurisdiction of
them ; but as to conspiracy, " it is a trespass, and tres-
passes are indictable at sessions ; though not committed vi
et armis, they tend to a breach of the peace, as much as
cheats, which are established to be within the jurisdiction
of sessions." Where, however, a statute creates a new °
offence, and directs it to be prosecuted before a court of oyer
and terminer, or gaol delivery, without mentioning the
general or quarter sessions, that is deemed to be an implied
exclusion of the jurisdiction of the sessions with respect to
that particular offence. But where an indictment for light-
ing fires on the coast, contrary to 47 Geo. III., sec. 2, c.
66, was preferred at the sessions, removed by ceruorari
and tried at the assizes ; and it was objected for the defen-
dant that the sessions had no jurisdiction, as the statute
required that the offenders should be carried before a jus-
tice of the peace, and by him committed to the county
gaol, " there to remain until the next court of oyer and
terminer, great session or gaol delivery," which amounted
to an implied enactment that indictment should be pre-
fered in those courts only ; the court held that, as the
offence was a misdemeanor only, and the defendant might
be prosecuted for it without his being apprehended or in
custody, the clause in the act referred to did not prevent
the indictment from being preferred at the sessions ; they
held the indictment, therefore, to have been properly origi-
nated, and passed sentence on the defendant.
646 PROCEDURE ACT.
In England, now, there is a statute which takes away
from the jurisdiction of the courts of sessions of the peace
a large number of offences, which these courts could before
try and determine. It is the 5-6 V., c. 58.
5. Neither the justices of the peace acting in and for any district,
county, division, city or place, nor any judge of the sessions of the
peace, nor the recorder of any city, shall, at any session of the peace,
Or at any adjournment thereof, try any person for any offence under
sections twenty-one, twenty-two and twenty-three of the "Act respect-
ing offences against the person. — 32-33 V., c. 20, s. 48.
6. No court of general or quarter sessions of the peace shall have
power to try any offence under any of the provisions of sections sixty
to seventy-six, both inclusive, of " The Larceny Act." — 32=33 V '., c. 21,
*. 92.
7. The judge of the sessions of the peace for the city of Quebec, the
judge of the sessions of the peace for the city of Montreal, and every
police magistrate, district magistrate or stipendiary magistrate ap-
pointed for any territorial division, and every magistrate authorized
by the law of the Province in which he acts, to perform acts usually
required to be done by two or more justices of the peace, may do
alone whatever is authorized by this Act to be done by any two or
more justices of the peace, and the several forms in this Act con-
tained may be varied so far as necessary to render them applicable to
such case. — 32-33 V., c. 30, s. 59, and c. 36, s. 8.
PLACE OF COMMISSION AND TRIAL OF OFFENCES.
8. When any offence punishable under the laws of Canada has
been committed within the jurisdiction of the Admiralty of England,
the same may be dealt with, inquired of and tried and determined in
the same manner as any offence committed within the jurisdiction of
any court before which the offender is brought for trial. — 32-33 V., c.
29, s. 136.
9. When any person, being feloniously stricken, poisoned, or other-
wise hurt, upon the sea, or at any place out of Canada, dies of such
stroke, poisoning or hurt, in Canada, or, being feloniously stricken,
poisoned or otherwise hurt at any place in Canada, dies of such stroke,
poisoning or hurt, upon the sea, or at any place out of Canada, every
offence committed in respect of any such case, whether the same
amounts to murder or manslaughter, or of being accessory to murder
PROCEDURE ACT. 647
or manslaughter, may be dealt with, inquired of, tried, determined
and punished in the district, county or place in Canada in which such
death, stroke, poisoning or hurt happens, in the same manner, in all
respects, as if such offence had been wholly committed in that dis-
trict, county or place.— 32-33 F., c. 20, s. 9. 2i-25 F., c 100, s. 10,
Imp.
The 12-13 V., c. 96, s. 1, Imp., enacts that all offences
committed upon the sea, or within the jurisdiction of the
Admiralty shall, in any colony where the prisoner is charged
with the offence or brought there for trial, be dealt with
as if the offence had been committed upon any water
situate within the limits of the colony and within the
limits of the local jurisdiction of the courts of criminal
jurisdiction of such colony.
And s. 2 of the same act enacts that : where any person,
shall die in any colony of any stroke, poisoning or hurt,
such person having been feloniously striken, poisoned or
hurt upon the sea or within the limits of the admiralty, or
at any place out of the colony, every offence committed in
respect of any such case may be dealt with, inquired of
tried, determined and punished in such colony in the same
manner in all respects as if such offence had been wholly
committed in that colony, and if any person in any colony,
shall be charged with any such offence as aforesaid in
respect of the death of any person who having been felo-
niously stricken, poisoned or hurt, shall have died of such
stroke, poisoning or hurt upon the sea, or any where within
the limits of the Admiralty, such offence shall be held for
the purposes of the act to have been wholly committed
upon the sea.
The 17-18 V., c. 104, s. 267, Imp., enacts that all
offences against property or person committed in, or at any
place, either ashore or afloat, out of Her Majesty's domi-
nions by any master, seaman, or apprentice who at the time
648 PROCEDURE ACT.
when the offence is committed is or within three months
previously has been employed in any British ship are
deemed to be offences of the same nature respectively, and
are liable to the same punishments respectively, and may
be inquired of, heard, tried, and determined and adjudged
in the same manner, and by the same courts in the same
places, as if such offences had been committed within the
jurisdiction of the Admiralty of England.
The 18-19 V., c. 91, s. 21, Imp., enacts that if any
person, being a British subject, charged with having com-
mitted any crime or offence on board any British ship
on the high seas, or in any foreign port or harbor, or,
if any person, not being a British subject, charged with
having committed any crime or offence on board any British
ship on the high seas, is found within the jurisdiction of
any court of justice in Her Majesty's dominions which
would have had cognizance of such crime or offence if
committed within the limits of its ordinary jurisdiction,
such court shall have jurisdiction to hear and try the case
as if such crime or offence had been committed within such
limits. Then it is enacted that nothing contained in that
section shall affect the 12-13 V., c. 96, (ubi supra).
By the Imperial Merchant Shipping Amendment Act,
30-31 V., c. 124, sect. 11, it is enacted that :
" If any British subject commits any crime or offence
on board any British ship, or on board any foreign ship
to which he does not belong, any court of justice in Her
Majesty's Dominions, which would have had cognizance
of such crime or offence if committed on board a British
ship within the limits of the ordinary jurisdiction of such
court shall have jurisdiction to hear and determine the
case as if the said crime or offence had been committed
as last aforesaid."
See B. v. Armstrong, 13 Cox, 184.
PROCEDURE ACT. 649
By 23-24 V., c. 122, Imp., legislatures in Her Majesty's
possessions abroad are empowered to pass an enactment
as the one contained in sect. 9 of the Procedure Act,
ante.
By 28-29 V., c. 63, Imp., any colonial law repugnant to
an Act of the Imperial Parliament is, to the extent of
such repugnancy, void.
And by the Courts (Colonial) Jurisdiction Act, 1874,
— 37 V., c. 27, Imp. — it is enacted that :
" Whereas by certain Acts of Parliament jurisdiction
is conferred on courts in Her Majesty's colonies to try
persons charged with certain crimes or offences, and doubts
have arisen as to the proper sentence to be imposed upon
conviction of such persons When, by virtue of any
act of Parliament now or hereafter to be passed, a person
is tried in a court of any colony for any crime or offence
committed upon the high seas, or elsewhere out of the
territorial limits of such colony and of the local juris-
diction of such court, or, if committed within such local
jurisdiction, made punishable by that act, such person
shall, upon conviction, be liable to such punishment as
might have been inflicted upon him if the crime or offence
had been committed within the limits of such colony and
of the local jurisdiction of the court, and to no other, any-
thing in any act to the contrary notwithstanding : Provi-
ded always that if the crime or offence is a crime or offence
not punishable by the laws of the colony in which the trial
takes place, the person shall, on conviction, be liable to
such punishment (other than capital punishment) as shall
seem to the court most nearly to correspond to the
punishment to which such person would have been liable
in case such crime or offence had been tried in England."
The words " dealt with " apply to justices of the
650 PKOCEDURE ACT.
peace; " inquired of " to the grand jury; "tried" to the
petit jury and "determined and punished" to the court:
by Lord Wensleydale in R. v. Ruck, note Y., 1 Russ
757.
In R. v. Lewis, Dears. & B. 182, a wound was in-
flicted by an alien on an alien in a foreign vessel, bound
to England, of which wound the alien died in England,
immedialety after landing. The offender was tried and
convicted of manslaughter, but upon a case reserved, the
court of criminal appeal held that the clause similar to the
above section 9 of our statute did not apply to such a case,
and quashed the conviction. The judges said that this
section was not to be construed as making a homicide
cognizable in England by reason only of the death occurring
there, unless it would have been so cognizable in case the
death had ensued at the place where the blow was given.
In this case, the injury which caused the death was inflict-
ed by one foreigner upon another on board a foreign
vessel upon the high seas, and, consequently, if death had
then and there followed, no offence cognizable by the law
of this country had taken place ; see 1 Bishop's Cr. L.
112 ; 1 Cr. Proc. 51, 53.
A prisoner is " found," within the meaning of s. 21,
of 18-19 V., c. 91, ubi supra, wherever he is actually
present, and the court, where he is present, under that
act, has jurisdiction to try him, even if he has been
brought there by force as a prisoner. — R. v. Lopez ; R. v.
Sattler, Dears. & B. 525.
On jurisdiction as to offences committed within the
limits of the Admiralty, see Archbold, 29 ; 1 Russ. 762;
1 Burn, 42.
A German vessel carrying the German flag, on a
voyage from Hamburg to the West Indies, commanded
PROCEDURE ACT. 651
by the prisoner, a German, and having a crew nearly all
Germans, and a French pilot, whilst on her voyage in the
British Channel, at a point within 2i miles from Dover
Beach, ran into and sank an English ship, and thereby
occasioned the death of an English subject on board of her.
The facts were such as to render the prisoner (if he had
been an English subject) liable for manslaughter by the
law of England.
Held (per Cockburn, C. J., Kelly, C. B., Bramwell, J.
A., Lush, J., Pollock, B., Field, J., and Sir R. Phillimore,)
that there was no jurisdiction in the courts of this country
to try the prisoner, a foreigner passing the English coast,
on the high seas in a foreign vessel, though the occurence
took place within three miles of the coast. Held (per
Cockburn, C. J., Bramwell, J. A., Brett, J. A., Lush, J.,
Pollock, B., Field, J., and Sir E. Phillimore,) that the
offence was not committed on board a British ship, though
the person whose death was caused was in a British ship
at the time of the collision and sinking of her.
Held, (per Lord Coleridge, C. J., Brett, J. A., Amph-
lett, J. A., Grove, J., Denuian, J., and Lindley, J.,)
that the courts of this country had jurisdiction, the offence
being committed within three miles of the English coast.
Held (per Lord Coleridge, C. J., and Denman, J.,) that
the offence was committed on board the British vessel. —
R. v. Keyn, 13 Cox, 403. See R. v. Carr, 15 Cox, 129.
— R. v. Anderson, 11 Cox, 198.
Now, by 41-42 V., c. 73, (Imp.), this decision in R. v.
Keyn, ubi supra, is not to be followed. This Act applies
to Canada.
The large inland lakes of Ontario are within the juris-
diction of the Admiralty— R. v. Sharp, 5 P. R. (Out.)
135.
652 PROCEDURE ACT.
Where a person dies in this Province from ill-treatment
received on board a British ship at sea, the trial for man-
slaughter against the person who ill-treated him must take
place in the district where the man died, not where he
was apprehended. — R. v. Moore, 2 Q.B,R. 52.
On an indictment for an offence committed on board a
British ship upon the high seas, it is not necessary in
order to prove the nationality of the ship to produce its
register, but the fact that she sailed under the British flag
is sufficient. — R. v. Moore, 2 Q. B. R. 52. See R. v. Von
Seberg, 11 Cox, 520, and R. v. Bjornsen, 10 Cox, 74.
In an indictment for a larceny committed on board a
British vessel, it is sufficient to say upon the sea, without
saying, upon the high seas. — R. v. Sprungli, 4 Q. L. R
110.
10. When any felony or misdemeanor is committed on the boun-
dary of two or more district?, counties or places, or within the distance
of one mile of any such boundary, or in any place with respect to
which it is uncertain within which of two or more districts, counties
or places it is situate, or when any felony or misdemeanor is begun
in one district, county or place, and completed in another, every such
felony or misdemeanor may be dealt with, inquired of, tried, deter-
mined and punished, in any one of the said districts, counties or
places, in the same manner as if it had been actually and wholly
committed therein.— 32-33 V., c 29, s. 8.
This clause is taken from the 7 Geo. 4, c. 64, sec. 12 of
the Imperial Acts.
The distance of one mile mentioned in the above clause
is to be measured in a direct line from the border, and not
by the nearest road ; R. v. Wood, 5 Jur. 225.
This clause does not enable the prosecutor to lay the
offence in one county and try it in the other, but only to
lay and try it in either ; R. v. Mitchell, 2 Q. B. 636. See
also on this clause ; jB. v. Jones, 1 Den. 551 ; R. v. Leech,
Dears. 642.
PROCEDURE ACT. 653
Murder, like all other offences, must regularly, according
to the common law, be inquired of in the county in which
it was committed. It appears, however, to have been a
matter of doubt at the common law, whether when a man
died in one couDty of a stroke received in another, the
offence could be considered as having been completely
committed in either county ; but by the 2-3 Edw. 6, c.
24, sec. 2, it was enacted that the trial should be in the
county where the death happened.
Under the said section 10 of the Procedure Act, where
the blow is given in one county, and the death takes place
in another, the trial may be in either of these counties. — 1
.753. This clause applies to coroners, when a felony
has been committed, but not when the death is the result
of an accident. — R. v. Great Western Railway Company,
3 Q. B. 333 and note by Greaves, 1 Russ. 75-4 ; R. v. Grand
Junction R. Co. 11 A. <£ E. 128.
11. When any felony or misdemeanor is committed on any person
or on or in respect of any property, in or upon any coach, wagon,
cart or other carriage whatsoever, employed in any journey, or is
committed on any person, or on or in respect of any property on
board any vessel, boat or raft whatsoever, employed in any voyage or
journey upon any navigable river, canal or inland navigation, such
felony or misdemeanor may be dealt with, inquired of, tried, deter-
mined and punished, in any district, county or place, through any
part whereof such coach, wagon, cart, carriage or vessel, boat or raft,
passed in the course of the journey or voyage during which such
felony or misdemeanor was committed, in the same manner as if it
had been actually committed in such district, county or place, — 32-
33 Y.,c. 29, s. 9.
12. Whenever the side, centre, bank or other part of any highway
or of any river, canal or navigation, constitutes the boundary of any
two districts, counties or places, any felony or misdemeanor mentioned
in the two sections next preceding may be dealt with, inquired of,
tried, determined and punished in either of such districts, counties
or places, through or adjoining to, or by the bouudary of any part
654 PROCEDURE ACT.
whereof such coach, wagon, cart, carriage or vessel, boat or raft,
passed in the course of the journey or voyage during which such
felony or misdemeanor was committed, in the same manner as if it
had been actually committed in such district, county or place. — 32-33
V., c. 29, s. 10.
These two clauses are taken from the 7 Geo. 4, c. 64,
sec. 13, of the Imperial Statutes.
This enactment is not confined in its operation to the
carriages of common carriers or to public conveyances, but
if propei ty is stolen from any carriage employed on any
journey, the offender may, by virtue of the above section,
be tried in any county through any part whereof such
carriage shall have passed in the course of the journey
during which such offence shall have beeD committed. —
M. v. Sharpe, Dears. 415.
As to the effect of the words " in or upon '' in this
section, see R. v. Sharpe, 2 Lewin, 233.
Where the evidence is consistent with the fact of an
article having been abstracted from a railway carriage,
either in the course of the journey through the county of
A., or after its arrival at its ultimate destination in the
county of B., and the prisoner is indicted under the above
section, the case must go to the jury, who are to say
whether they are satisfied that the larceny was committed
in the course of the journey or afterwards. — M. v. Pierce,
6 Cox, 117.
13. If, upon the dissolution of a union of counties, any information,
indictment or other criminal proceeding, in which the venue is laid
in a county of the union is pending, the court in which such informa-
tion, indictment or proceeding is pending, or any judge who has
authority to make orders therein, may, by consent of parties, or on
hearing the parties upon affidavit, order the venue to be changed to
the new county, and all records and papers to be transmitted to the
proper officers of such county, and in the case of any such indictment
found at any court of criminal jurisdiction, any judge of a superior
court may make the order ;
PROCEDUKE ACT. 655
2. If no such change is directed, all such informations, indictments
and other proceedings shall be carried on and tried in the senior
county ;
3. Any person charged with an indictable offence who, at the time
of the disuniting of a junior from a senior county, is imprisoned on
the charge in the gaol of the senior county, or is under bail or recog-
nizance to appear for trial at any court in the senior county, and
against whom no indictment has been found before the disunion takes
place, shall be indicted, tried and sentenced in the senior county,
unless a judge of a superior court orders the proceedings to be
conducted in the junior county, in which event the prisoner or
recognizance, as the case may be, shall be removed to the latter county,
and the proceedings shall be had therein; and when, in any such
case, the offence is charged to have been committed in a county other
than that in which such proceedings are had, the venue may be laid
in the proper county describing it as " formerly one of the united
counties of "—29-30 V. (Can.), c 51 , ss. 52, 53 and 55.
14. All crimes and offences committed in any of the unorganized
tracts of country in the Province of Ontario, including lakes, rivers,
and other waters therein, not embraced within the limits of any
organized county, or within any provisional judicial district, may be
laid and charged to have been committed and may be inquired of
tried and punished within any county of such Province ; and such
crime or offence shall be within the jurisdiction of any court having
jurisdiction over crimes or offences of the like nature committed
within the limits of such county, before which court such crime or
offence may be prosecuted; and such court shall proceed therein to
trial, judgment and execution or other punishment for such crime or
offence, in the same manner as if such crime or offence had been
committed within the county where such trial is had ;
2. When any provisional judicial district or new county is formed
and established in any of such unorganized tracts, all crimes and
offences committed within the limits of such provisional judicial
district or new county, shall be inquired of, tried and punished within
the same, in like manner as such crimes or offences would have been
inquired of, tried and punished it" this section had not been passed ;
3. Any person accused^or convicted of any offence in any such
provisional district may be committed to any common gaol in the
Province of Ontario ; and the constable or other officer having charge
of such person and intrusted with his conveyance to any such common
656 PROCEDURE ACT.
gaol, may pass through any county in such Province with such person
in his custody ; and the keeper of the common gaol of any county in
such Province in which it js found necessary to lodge for 6afe
keeping any such person so being conveyed through such county in
custody, shall receive such person and safely keep and detain him in
such common gaol for such period as is reasonable or necessary ; and
the keeper of any common gaol in such Province, to which any such
person is committed as aforesaid, shall receive such person and safely
keep and detain him in such common gaol under his custody until
discharged in due course of law, or bailed in cases in which bail may
by law be taken.— C. S. U. C, c 128, ss. 100, 101 and 105.
15. Whenever any offence is committed in the district of Gaspe,
the offender, if committed to gaol before trial, may be committed to
the common gaol of the county in which the offence was committed,
or may in law be deemed to have been committed, and if tried before
the Court of Queen's Bench, he shall be so tried at the sitting of such
court held in the county to the gaol of which he has been committed,
and if imprisoned in the common gaol after trial he shall be so
imprisoned in the common gaol of the county in which he has
been tried.— C. S. L. C, c. 80, s. 6.
16. Every person accused of perjury, bigamy or any offence under
the provisions of sections fifty-three, fifty-four and fifty-five of " The
Larceny Act," may be dealt with, indicted, tried and punished in the
district, county or place in which the offence is committed, or in which
he is apprehended or is in custody. — 32-33 V., c- 20, s. 58, part, and
c. 21, s. 72, part, and c 23, s. 8. 33 V-, c. 26, s. 1, part. 24-25 V.,
c. 96, s. 70 ; c. 100, s. 57, Imp.
Lynch was indicted in the district of Beauharnois for
perjury committed in the district of Montreal; there was
no averment in the indictment that the defendant had been
apprehended, or in custody, or that he was in custody at
the time of the finding of the indictment. The defendant
neither demurred nor moved to quash, but after verdict
moved in arrest of judgment on the ground that there was
no averment in the indictment of his having been appre-
hended or in custody. The sitting judge dismissed the
motion in arrest of judgment, but reserved the point so
raised.
PROCEDURE ACT. 657
Held, That the indictment was defective, that the defect
was one which could not be amended and, consequently,
was not cured by verdict, and that the judgment must be
arrested and the defendant discharged. — R. v. Lynch, 20
L. C. J. 1ST ; 7 R. L. 553. — See note under sec. 18, post,
and R. v. Smith, 1 F. <&• F. 36. Also note c. to 1 Russ. 274.
17. The offence of any person who is an accessory, either before or
after the fact, to any felony, may be dealt with, inquired of, tried, deter-
mined and punished by any court which has jurisdiction to try the
principal felony, or any felonies committed in any district, county or
place in which the act, by reason whereof such person became such
accessory, has been committed: Provided, that no person once duly
tried, either as an accessory before or after the fact, or for a substan-
tive felony, shall be liable to be afterwards prosecuted for the same
offence— 31 V ., c. 72. s. 8. 32-33 V., c. 17, s. 2. 24-25 V., c 94, *.
7, Imp.
There is a material difference between this clause
and the corresponding clause of the Imperial Act. See
Greaves, note, to sec. 7 of the Imperial Act, page 25 of
Greaves, Cons: Acts.
18. Every one who commits any offence against the " Act respect'
ing Forgery," or commits any offence of forging or altering any matter
whatsoever, or of offering, uttering, disposing of or putting off any
matter whatsoever, knowing the same to be forged or altered, whether
the offence in any such case is indictable at common law, or by virtue
of any act, may be dealt with, indicted, tried and punished in any
district, county or place in which he is apprehended or is in custody;
in the same manner in all respects as if the offence had been actually
committed in that district, county or place; and every accessory
before or after the fact to any such offence, if the same is felony, and
every person aiding, abetting or counselling the commission of any
such offence, if the same is a misdemeanor, may be dealt with, indict-
ed, tried and punished, in any district, county or place in which he
is apprehended or is in custody, in the same manner in all respects as
if his offence, and the offence of his principal, had been actually com-
mitted in such district, county or place. — 32-33 ¥., c- 19, s. 48. 24-25
V.,c. 98, s- 41, Imp.
It was held, under the corresponding section of the
ss
658 PROCEDURE ACT.
English act, that where the prisoner is tried in the county
where he is in custody, the forgery may be alleged to have
been committed in that county, and there need not be any
averment that the piisoner is in custody there. — M. v.
James, 7 C. & P. 553. And in the case of R. v. Smythies,
1 Ben. 498, it was held that, although the defendant is not
shewn to have been in custody in the county where the
bill is found, until the moment before his trial, when he
surrenders in discharge of his bail, that is sufficient to make
him triable there, and the judges said that the same ruling
had been given in R. v. Whiley, 2 Moo. C. C. 186, though
the report is to the contrary.
This last case is rightly reported in 1 C. & K. 150.
See remarks under sec. 16, ante.
19. Every one accused of any offence against the provisions of
section forty-six of the "Act respecting Offences against the Person"
may be tried either in the district, county or place in which the same
was committed, or in any district, county or place into or through
which the person kidnapped or confined was carried or taken while
under such confinement; but no person who has been once duly tried
for any such offence shall be liable to be again indicted or tried for
the same offence.— 32-33 V., c 20, s. 71.
See note under preceding section.
20. Every one who receives any chattel, money, valuable security
or other property whatsoever, knowing the same to have been felo-
niously or unlawfully stolen, taken, obtained, converted or disposed
of, whether charged as an accessory after the fact to the felony, or
with a substantive felony, or witli a misdemeanor only, may be dealt
with, indicted, tried and punished in any county, district or place in
which he has or has had any such property in his possession, or in
any county, district or place in which the person guilty of the prin-
cipal felony or misdemeanor may, by law, be tried, in the same manner
as such receiver may be dealt with, indicted, tried and punished in
the county, district or place where he actually received such properly.
32-33 V., c, 21, s. 105.— 24-25 V., c. 96, s. 96, Imp.
See remarks under sees. 82, 83 and 84 of the Larceny
Act
PKOCEDUEE ACT. 659
A prisoner was tried at Amherst upon an indictment
containing two counts, one for robbery and the other fot
receiving stolen goods. Both offences were proved to have
been committed at Truro, and the jury found a general
verdict of guilty on both counts.
Held, that the prisoner should have been proceeded
against only on the count for receiving, and that, although
he might have been guilty of both offences, as the robbery
was committed in another county than that in which he
was tried, he must be discharged. — The Queen v. Russell,
3 R. <& G. (X S.) 254.
21. Every one who brings into Canada, or has in his possession
therein, any property stolen, embezzled, converted or obtained by
fraud or false pretences in any other country, in such manner that
the stealing; embezzling, converting or obtaining it in like manner in
Canada, would, by the laws of Canada, be a felony or misdemeanor,
may be tried and convicted in any district, county or place in Canada
into or in which he brings such property, or has it in possession. —
32-33 V.,c. 21, s. 112, part.
Sec. 88 of the Larceny Act (see, ante,) enacts that every
one who briugs into Canada any property so stolen, etc.,
in any other country is guilty of an offence of the same
nature as if the stealing, etc., had taken place in Canada.
This clause is not to be found in the Imperial Acts.
And in Englaud, thefts committed out of the kingdom,
and even in the Channel Islands are not indictable, though
the stolen property is brought into Eugland. The cases
are clear on the question.
If a larceny be committed out of the kingdom, though
within the crown's dominion, bringing the stolen money
into this kingdom will not make it larceny here. — R. v.
Prowes, 1 Moo. C. C. 349. And, if a larceny be commit-
ted in France, the party cannot be tried in England, though
he brings the goods thereto. — R. v. Madge, 9 C. & P. 29.
660 PROCEDURE ACT.
The prisoner had stolen goods in Guernsey and brought
them to England, where he was taken and committed for
trial : Held, that Guernsey not being a part of the United
Kingdom, the prisoner could not be convicted of larceny
for having them in possession here, nor of receiving in
England the goods so stolen in Guernsey. — R. v. Debruiel,
11 Cox, 207.
This sec. 88 of our Larceny Act is open to grave objec-
tions. Had Parliament the power to pass it ? Is it not
extra-territorial legislation ? Of course, a conviction or an
acquittal in the foreign country whence the goods have
been brought would be no bar here to another prosecution.
The rule that no man shall be put twice in jeopardy for
the same offence " cannot span country and country in such
a way as to cause a jeopardy in one country to free the
party from trial in another.'' — 1 Bishop, Cr. L. 983. See
Wheaton, International Law, 184.
And vice versd, a conviction or an acquittal in Canada
would be no bar to a trial in the country where the offence
was committed, upon the return thereto of the offender. So
that a party from France, for instance, who has been tried
and acquitted there may, on his arrival here with the pro-
perty, be arrested, tried and convicted of larceny upon the
same facts because, by the law of Canada, his act constitutes
larceny, though, in France, it did not, So that, according
to this interpretation of the clause, though this party com-
mitted no crime at the time, yet, the mere fact of his com-
ing to Canada with the property will retroact on his act
so a: to make it a crime ! And conversely, a Frenchman
may be arrested, tried and convicted here for an act which,
in France, was not a criminal offence ; and, upon his
return to France, put upon his trial and found never to
have been guilty. The clause has no restriction. It
PROCEDUEE ACT. 661
extends to foreigners as well as to British subjects, and it
enacts virtually that an act done in a foreign country is a
crime in Canada
Now in R. v. Lewis, Dears, cfc B. 182, under the clause
of the Imperial Act corresponding to sec. 9 of our Proce-
dure Act, it was held that this clause gives no jurisdiction
to the English courts over offences committed by foreign-
ers on foreign ships on the high seas. " How can we say,"
said Coleridge, J., " whether one foreigner wounding ano-
ther on the high seas commits a felony ? See, also, R. v.
■a, 1 Den. 104.
The law as to territorial limits of the jurisdiction of any
country is well settled. The laws of no nation can extend
beyond its territory, except as to its own subjects, and can
have no force to control the rights of any other nation
within its own jurisdiction. The ApoUon, 9 Wheat. 370.
"Now, no preposition of law can be more incontestable or
more universally admitted, than that, according to the
general law of nations, a foreigner cannot be held crimi-
nally responsible to the law of a nation not his own. for
acts done beyond the limits of its territory." Per Cuck-
burn, C. J.—R. v. Keyn, 13 Cox, 403.
This clause of our statute, it is true, does not in o
express terms profess to deal with crimes committed in
foreign countries, but makes it a crime, in Canada, to
bring into Canada property acquired by a crime in another
country. R. v. Hennessey, post. But it requires obviously
the trial by our courts of acts done abroad, even by
foreigners, and, as previously remarked, authorizes our
courts to stamp as a crime or declare it to have been a
crime an act done in a foreign country and which at the
time it was done may not have been a crime by the laws
of that country. The contention that the bringing into
662 PKOCEDUKE ACT.
Canada of the property stolen is the offence to be tried
here does not meet the objection. The first inquiry has to
be whether the property was stolen or not, whether there
was a crime or not in the foreign country.
The prisoner being the agent of the American Express
Co. in the State of Illinois, received a sum of money which
had been collected by them for a customer, and put it into
their safe, but made no entry in their books of its receipt,
as it was his duty to do, and afterwards absconded with it
to this Province, where he was arrested . Held, that,
according to Canadian and English law, he was guilty of
larceny and was properly convicted here under the above
section. — R. v. Hennessey, 35 U. C. Q. B. 603.
In this case, it must be noticed, the prisoner was not
found guilty of bringing into Canada stolen property in
the words of the act, but he was found guilty of larceny.
The act does say that the bringing such a property into
Canada is an offence of the same nature as if the stealing
had taken place in Canada, But does that mean that he is
guilty of the same offence ? Does it not merely mean that
the nature of the offence of bringing such property into
Canada will be either felony or misdemeanor, according to
what the act done in the foreign country would itself have
been if done in Canada ?
No objection appears to have been made to the judge's
charge in that case, and this objection to the verdict was
not taken or noticed.
The whole case itself does not seem to have been fully
argued, and perhaps would bear reconsideration. It cer-
tainly does appear by the case as reported that Hennessey
was, in Canada, found guilty of a larceny committed in the
United States
22. If any person has in his possession in any one part of Canada,
PROCEDURE ACT. 663
any chattel, money, valuable security or other property whatsoever,
which he has stolen or otherwise feloniously or unlawfully taken or
obtained by any offence against " The Larceny Act," in any other
part of Canada, lie may be dealt with, indicted, tried and punished
for larceny or theft in that part of Canada where he so has such
property, in the same manner as if he had actually stolen, or taken
or obtained it in that part; and if any person in any one part of
Canada receives or has any chattel, money, valuable security or
other property whatsoever, which has been stolen or otherwise felo-
niously or unlawfully taken or obtained in any other part of Canada,
such person knowing such property to have been stolen or otherwise
feloniously or unlawfully taken or obtained, may be dealt with,
indicted, tried and punished for such offence in that part of Canada
where he so receives or has such property, in the same manner as if
it had been originally stolen or taken or obtained in that part. — 32-33
Y.,c. 21, s. 121. 24-25 V., c. 96, s. 114, Imp.
The words in italics are not in the English act.
A watch was stolen in Liverpool and sent with other
things by railway to a receiver in Middlesex. Held, that
the thief was triable in Middlesex, although there was no
evidence that he had left Liverpool. — R. v. Rogers, 11
Cox, 38.
23. If any person tenders, utters, or puts off any false or coun-
terfeit coin in any one Province of Canada, or in any one district,
county or jurisdiction, therein, and also tenders, utters or puts off any
other false or counterfeit coin, in any other Province, district, county
or jurisdiction, either on the day of such first mentioned tendering,
uttering or putting off", or within the space often days next ensuing,
or if two or more persons, acting in concert in different Provinces, or
in different districts, counties or jurisdictions therein, commit any
offence against the " Act respecting Offences relating to the 00111,'''
every such offender may be dealt with, indicted, tried and punished,
and the offence laid an 1 charged to have been committed, in any one
of the said province*, or districts, counties or jurisdictions, in the
same manner in all respects, as if the o.Tencs had been actually and
wholly committed within one province, district, county orjurisdiction.
^32-33 V., c. 18, s. 29. 24-25 V., c 99, ss. 10 and 28, Imp.
Greaves says on thi3 claus3 : " The first part is intro-
664 PROCEDURE AcT.
duced to remove a doubt which had arisen, whether a
person tendering, etc., coin in one jurisdiction and after-
wards tendering, etc, coin in another jurisdiction, within
sect. 10 (of the Imperial Coin Act,) could be tried in
either. As the offence created by that section is only
a misdemeanor, probably there was no substantial ground
for that doubt, but it was thought better to set the matter
at rest."
APPREHENSION OF OFFENDERS.
24. Any person found committing an offence punishable either
upon indictment or upon summary conviction, may be immediately
apprehended without a warrant by any constable or peace officer, or
by the owner of the property on or with respect to which the offence
is being committed, or by his servant or any other person authorized
by such owner, and shall be forthwith taken before some neighboring
justice of the peace, to be dealt with according to law. — 32-33 V., c-
22, s. 69, and c. 29, s. 2. 24-25 V., c. 97, s. 61, Imp.
25. Any person found committing any offence punishable either
upon indictment or upon summary conviction, by virtue of " Ihe
Larceny Act" or the " Act respecting the protection of the Property
of Seamen in the Ravy" may be immediately apprehended without a
warrant by any person, and forthwith taken, together with the
property, if any, on orwith respect to which the offence is committed,
before some neigli boring justice of the peace to be dealt with according
to law.— 32-33 V., c. 21, s. 117, part. 33 V., c. 31, s. 5, part. 24-25
V., c. 96, s. 103, Imp.
26. If any person to whom any property is offered to be sold,
pawned or delivered, has reasonable cause to suspect that any such
offence has been committed on or with respect to such property, he
may, and, if in his power, he shall apprehend and forthwith carry
before a justice of the peace, the person offering the same, together
with such property, to be dealt with according to law. — 32-33 V.,
c 21, s. 117, part, and c. 29, s. 3. 33 V-, c. 31, s. 5, part. 24-25 V.,
c. 96, s. 103, Imp.
27. Any person may apprehend any other person found commit-
ting any indictable offence in the night, and shall convey or deliver
him to some constable or other person, so that he may be taken, as
soon as conveniently may be, before a justice of the peace, to be dealt
PROCEDURE ACT. 665
with according to law.— 32-33 V-, c. 29, s. 4. 14-15 V., c. 19, s. 11,
Imp.
28. Any constable or peace officer may, without a warrant, take
into custody any person whom he rinds lying or loitering in any high-
way, yard or other place, during the night, and whom he has good
cause to suspect of having committed, or being about to commit, any
felony, and may detain such person until he can be brought before a
justice of the peace, to be dealt with according to law :
2. No person who has been so apprehended shall be detained after
noon of the following day without being brought before a justice of
the peace— 32-33 V., c. 29, ss. 5 and 6. 24-25 V., c. 96, s. 104, c. 97,
s. 57, c. 100, s. 66, Imp.
29. Any person may apprehend any other person who is found
committing any indictable offence, against the " Act respecting
Offences relating to the Coin," and convey and deliver him to a peace
officer, constable or officer of police, so that he may be conveyed, as
soon as reasonably may be, before a justice of the peace, to be dealt
with according to law.— 32-33 T'., c. 16, s. 33. 24-25 T"., c 96, s. 31.
Imp.
Prisoner arrested and detained upon a telegram from
persons in France and England. Konigs, in. re, 6 B. L.
213. See B. v. MvILAme, 8 P. B. (Out.) 452.
At common law, if a constable or peace officer sees any
person committing a felony, he not only may, but he must
and is bound to apprehend the offender. And not oulya
constable or peace officer, but " all persons who are pres-
ent when a felony is committed, or a dangerous wound
given, are bound to apprehend the offender, on pain of
being fined and imprisoned for their neglect, unless they
were under age at the time; (1 Hawkins, 115); and
it is the duty of all persons to arrest without warrant any
person attempting to commit a felony; ( B. v. Hunt, 1
Moo. C. C. 93; E. v. Houarth, 1 Moo. C. C. 207;. So
any person may arrest another for the purpose of putting
a stop to a breach of the peace, committed in his presence
(2 Hawkins, P. C. 115; 1 Bum, 295, 299.) A peace
666 PEOCEDURE ACT.
officer may arrest any person without warrant, on a reason-
able suspicion of felony, though that doctrine does not
extend to misdemeanors. And even a private person has
that right. But there is a distinction between a private
person and a constable as to the power to arrest any one
upon suspicion of having committed a felony, which is
thus stated by Lord Tenterden, C. J., in Beckwith v. PhiU
by, 6 B. & C. 35 :
" In order to justify a private person in causing the
imprisonment of a person, he must not only make out a
reasonable ground of suspicion, but he must prove that a
felony has been actually committed; See Ashley v. Dundas,
5 0. 8. (Ont). 749 ; whereas a constable, having reasonable
gronnd to suspect that a felony has been committed, is
authorized to detain the party suspected until inquiry can be
made by the proper authorities. See McKenzie v. Gibson, 8
U. C. Q. B. 100. This distinction is perfectly settled. The
rule as to private persons was so stated by Genney, in the
Year Book, 9 Edw. 4, already mentioned, and has been
fully settled ever since the case of Ledwith v. Catchpole
(Cald. 291, A. D. 1783) ; Greaves, on arrest without war-
rant." See Murphy v. Bills, 2 Han. (M. B.) 347.
Any private person may also arrest a person found com-
mitting a misdemeanor. This doctrine having been denied,
in England, by a correspondent of the Times, Mr. Greaves,
Q. C, the learned framer of the English Criminal Law
Consolidation Acts, published, on the question, an article,
(Appendix to Greaves' Grim. Acts) too long for insertion
here, but from which the following extracts give fully the
author's views on the question : —
" On these authorities it seems to be perfectly clear that
any private person may lawfully apprehend any person
whom he may catch in the attempt to commit any felony,
PROCEDUEE ACT. 667
and take him before a justice to be dealt with according to
law. "
" I have now adduced abundantly sufficient authorities
to prove that the general assertion in the paper (in the
Times), that ' a private individual is not justified in arrest-
ing without a warrant a person found committing a misde-
meanor, cannot be supported. On the contrary, those
authorities very strongly tend to show that any private
individual may arrest any person whom he catches com-
mitting any misdemeanor. It is quite true that I have
been unable to find any express authority which goes to
that extent ; but it must be remembered that where the
question turns on some common law rule, there never can
have been any authority to lay down any general rule ;
each case must necessarily be a single instance of a par-
ticular class ; and, as in larceny, notwithstanding the vast
number of cases which have been decided, no complete
definition of the offence has ever yet been given by any
binding authority, so in the present case we must not be
surprised if we find no general rule established. "
" But when we find that all misdemeanors are of the
same class ; that it is impossible to distinguish in any
satisfactory way between one and another, and that in the
only case (Fox v. Gaunt) where such a distinction was
attempted, the court at once repudiated it ; and when, on
the question whether a party indicted for a misdemeanor
was entitled to be discharged on habeas corpus, Lord Tent-
erden, C. J., said, in delivering the judgment of the court,
' I do not know how for this purpose, to distinguish between
one class of crimes and another. It has been urged that the
same principle will warrant an arrest in the case of a com-
mon assault. That certainly will follow : Ex parte Scott,
9 B. & C. 446. And when, above all, the same broad prin-
668 PROCEDURE ACT.
ciple that it is for the common good that all offenders should
be arrested, applies to every misdemeanor, and that prin-
ciple has bsen the foundation of the decisions from the ear-
liest times, and was the ground on which Timothy v.
Simpson was decided ; the only reasonable conclusion
seems to be that the power to arrest applies to all misde-
meanors alike, wherever the defendant is caught in the
act."
It has been held that where a statute gives a power to
arrest a person found committing an offence, he must be
taken in the act, or in such continuous pursuit that from
the finding until the apprehension, the circumstances con-
stitute one transaction. — Hanway v. Boulibee, 4 C & P.
350; R. v. Curran, 3 C & P. 397 ; R. v. Howart,!
Moo. 0.0. 207; Roberts v. Orchard, 2 H. & 0. 769 ; and
therefore, if he was found in the next field with property
in his possession suspected to be stolen out of the adjoining
one, it is not sufficient ; R. v. Curran, 3 C. & P. 397 ;
but if seen committing the offence it is enough, if the
apprehension is on quick pursuit. Hanway v. Boultbce,
4 C & P. 350. The person must be immediately appre-
hended ; therefore, probably, the next day would not be
soon enough, though the lapse of time necessary to send
for assistance would be allowable ; Morris v. Wise, 2 F.
& F. 51 ; but an interval of three hours between the com-
mission of the offence and the discovery and commence-
ment of pursuit is too long to justify an arrest without
warrant under these statutes. — Bowing v. Cassel, 36 L. J.
M. C 97.
The person must be forthwith taken before a neigh-
boring justice, and, therefore, it is not complying with the
statute to take him to the prosecutor's house first, though
only half a mile out of the way ; Morris v. Wise, 2 F. &
PROCEDURE ACT. 669
F. 51 ; unless, indeed, it were in the night time, and then
he might probably be kept in such a place until the morn-
ing.— R. v. Hunt, 1 Moo. C. C. 93.
But no person can, in general, be apprehended without
warrant for a mere misdemeanor not attended with a
breach of the peace, as perjury or libel; King v. Poe, 30
J. P. 178 ; and a private individual cannot arrest another,
without warrant, on the ground of suspicion of his having
been guilty of a misdemeanor ; nor can, in this case, con-
stables and peace officers. — Mmttkewoy. Bidd>.dph,4:Scott,
X. & 54; Fox. v. Gaunt, 3 B. & A. 798 ; Grijjia v. Cole-
man, 4 H. <t X. 265. Neither can any person, not even a
constable, arrest a person without a warrant on a charge
of misdemeanor ; R. v. Curcan, 1 Moo. C. C. 132 ; R. v.
Phelps, C. dM. 1S0-R. v. Chapman, 12 Cox, 4; Codd v.
Cabe, 13 Cox, 202 ; except when such person is found
committing the offence by the person making the arrest,
in the cases, as, ante, where the statute specially authorizes
him to do so. And though any person can make an am •-:
to prevent a breach of the peace, or put down a riot or an
affray, yet, after the offence is over, even a constable
cannot apprehend any person guilty of it, unless there is
danger of its renewal. — Price v. Seeley, 10 C. <£• F. 28 ;
Baynes v. Brewster, 2 Q. B. 375; DerecouH v. 06 -
bishley, 5 E. & E. 188 ; Timothy v. Simpson, 1 C. M.
<L- R. 757 ; R. v. Walker, Dears. 358. In R. v. Light,
Dears. & B. 332, it appeared that the constable, while
standing outside the defendant's house, saw him take
up a shovel and hold it in a threatening attitude over his
wife's head, and heard him at the same time say. " If it
was not for the policeman outside I would split your head
open;" that in about twenty minutes afterwards the
defendant left his house, after saying that he would leave
670 PROCEDUKE ACT.
his wife altogether, and was taken into custody by the
constable, who had no warrant, when he had proceeded a
short distance in the direction of his father's residence ;
the prisoner resisted and assaulted the constable, for which
he was tried and found guilty, and, upon a case reserved,
the judges held that the conviction was right, and that the
constable had the right to apprehend the defendant. " A.
constable, as conservator of the peace," said Williams, J.,
" has authority, equally with all the rest of Her Majesty's
subjects, to apprehend a man where there is reasonable
ground to believe that a breach of the peace will be com-
mitted ; and it is quite settled that where he has witnessed
an assault he may apprehend as soon after as he conve-
niently can. He had a right to apprehend the prisoner
and detain him until he was taken before justices, to be
dealt with according to law. He had a right to take him,
not only to prevent a further breach of the peace, but also
that he might be dealt with according to law in respect of
the assault which he had so recently seen him commit."
Arrest, without warrant, for contempt of court. —
Judges of courts of record have power to commit to the
custody of their officer, sedente curid, by oral command,
without any warrant made at the time. — Kemp v. Neville,
10 C. B. N. S. 523. This proceeds upon the ground
that there is in contemplation of law a record of such
commitment, which record may be drawn up when
necessary ; Watson v. Bodell, 14 M. & W. 37 ; 1 Burn,
293 ; for the like reason no warrant is required for
the execution of sentence of death. — 2 Hale, 408. If a
contempt be committed in the face of a court, as by rude
and contumelious behavior, by obstinacy, perverseness,
or prevarication, by breach of the peace or any wilful
disturbance whatever, the judge may order the offender to
PROCEDURE ACT. 671
be instantly, without any warrant, apprehended and im-
prisoned, at his, the judge's, discretion, without any
further proof or examination ; 2 Hav.kins, 221; Cropper
v. Horton, 8 D. & R. 166 ; R. v. James, 1 D. & R.
559; 5 B. & A. 894; but the commitment must be for
a time certain, and if by a justice of the peace, for a
contempt of himself in his office, it must be by warrant in
writing; Mayheiv v. Locke, 2 Marsh, 377; 7 Taun. 63;
and the jurisdiction with regard to contempt, which
belongs to inferior cmirts, and in particular to the county
court, is confined to contempts committed in the court
itself.— £z parte Jolife, 42 L. J. Q. B. 121. This last
case rests principally on the 9-10 V., c. 96 (Imp.), which
gives to county courts power to commit for contempt com-
mitted in face of the court, but is silent as to contempt
committed out of court; see 4 Stephens' Com. 341. — R. v.
Lcfroy, L. R. 8 Q. B. 134.
Time, place and manner of arrest. — A person charged
on a criminal account may be apprehended at any time
in the day or night. The 29 Car. 2, c. 7, sec. 6, prohibited
arrests on Sundays, except in cases of treasons, felonies
and breaches of the peace, but now, an arrest in any
indictable offence may be executed on a Sunday. See 4
Stephens' Com. 347; 1 Chitty, 16; Rawlins v. Ellis,
10 Jur. 1039. No place affords protection to offenders
against the criminal law, and they may be arrested any
where, and wherever they may be. — Bacon's Abr. Verb.
Trespass.
As to the manner of arresting without warrant by a
private person, he is bound, previously to the arrest, to
notify to the party the cause for which he arrests, and to
require him to submit ; but such notification is not neces-
sary where the party is in the actual commission of the
672 PROCEDURE ACT.
offence, or where fresh pursuit is made after any such
offender, who, being disturbed, makes his escape ; so a
constable arresting, without warrant, is bound to notify his
authority for such arrest, unless the offender be otherwise
acquainted with it, except, as in the case of private
individuals, where the offender is arrested in the actual
commission of the offence, or on fresh pursuit. — R. v.
Howarth, 1 Moo. C. C. 207.
If a felony be committed, or a felon fly from justice, or
a dangerous wound be given, it is the duty of every man
to use his best endeavors for preventing an escape, and
if, in the pursuit, the felon be killed where he cannot be
othemvise overtaken, the homicide is justifiable. This rule
is not confined to those who are present so as to have
ocular proof of the fact, or to those who first come to the
knowledge of it, for if in these cases fresh pursuit be made,
the persons who join in aid of those who began the pursuit
are under the same protection of the law. But if he may
be taken in any case without such severity, it is, at least,
manslaughter in him who kills, and the jury ought to
enquire whether it were done of necessity or not ; 1 East,
P. C. 298 ; but this is not extended to cases of misde-
meanor or arrests in civil proceedings, though in a case of
riot or affray, if a person interposing to part the comba-
tants, giving notice to them of his friendly intention, should
be assaulted by them or either of them and in the struggle
should happen to kill, this will be justifiable homicide.
— Fost. 272. However, supposing a felony to have been
actually committed, but not by the person suspected and
pursued, the law does not afford the same indemnity to
such as of their own accord, or upon mistaken information
that a felony had been committed, engage in the pursuit,
how probable soever the suspicion may be ; but constables
PROCEDURE ACT. 673
acting on reasonable suspicion of felony are justified in
proceeding to such extremities when a private person may
not be ; but the constable must know, or at least have
reasonable ground for suspecting, that a felony has
been committed; for a constable was convicted of
shooting at a man, with intent to do him some grievous
bodily harm., whom he saw carrying wood out of a copse
which he had been employed to watch, and who, by run-
ning away, would have escaped if he had not fired, for
unless the man had been previously summarily convicted
for the same offence he had not committed a felony,
and, though he had been so previously convicted, the
constable was not aware of it. And the conviction was
affirmed by the court of crown cases reserved. " We all
think the conviction right," said Pollock, C. B., " the
prisoner was not justified in firing at Waters, because
the fact that Waters was committing a felony was not
known to the prisoner at the time. " — R. v. Dadson, 2
35.
What is an " immediate arrest " under sees. 24 and 25
is a question for the jury. — Griffith v. Taylor, 2 C. P. D.
194.
On the clause corresponding to sec. 26, ante, Greaves
says:
" As to what constitutes a reasonable cause, in such cases,
depends very much on the particular facts and circum-
stances in each instance ; the general rule being that the
grounds must be such that any reasonable person, acting
without passion or prejudice, would fairly have suspected
the party arrested of being the person who committed the
offence, though the words of the statute seem to authorize
the apprehension of the person offering, whether he be sus-
pected or not.— Allen v. Wright, 8 C. <tP. 522. A bare
TT
674 PROCEDURE ACT.
surmise or suspicion is plainly insufficient. Leete v. Hart,
37 L. J. C. P. 157 ; Davis v. Russell, 5 Bing. 354."
If the conduct of the person arresting is impugned in an
action of false imprisonment, a question arises as to whom
does it belong to decide whether the defendant had reason-
able cause of suspecting the plaintiff. The authorities
conflict upon the point. In Davis v. Russell, 5 Bing. 354,
and in Stonehouse v. Elliott, 6 T. R. 315, the Court of Com-
mon Pleas held it to be the judge's province to decide
whether the facts alleged constituted such reasonable cause,
and for the jury to say whether the facts stated really
existed, and the defendant acted upon their existence. But
in Wedge v. Berkley, 6 A. & E. 663, the court of Queen's
Bench considered the question of reasonable and probable
cause, a question purely for the jury. In the later case,
however, of Broughton v. Jackson, 18 Q. B. 378, it was
treated as a question of law ; and in the case of HaAles v.
Marks, 7 H. & N. 56 ; see also Hogg v. Ward, 3 H. & N.
417 ; the court of exchequer held the question of reasonable
cause to be purely one of law for the judge. It is to be
observed, however, that Bramwell, B., grounds his desci-
sion upon the case of Panto n v. Williams, 2 Q. B. 169,
without adverting to the fact that that was an action for
malicious prosecution. It is submitted, however, that there
is a clear distinction between the two cases, for whilst only
judges or lawyers are competent to form an opinion upon
what facts an action or an indictment would lie, and are
thus the only persons competent to decide whether there
was reasonable cause for instituting a prosecution, yet lay-
men are quite as competent as lawyers to say what affords
a reasonable ground of suspicion against a particular person
of having committed a crime. And thus it may well seem
that in the one form of action the judge may direct the
PROCEDURE ACT. 675
jury as to the reasonableness of the canse for a prosecution,
leaving the jury to ascertain the truth of the facts alleged ;
and in the other the jury may have the question of reason-
able cause of suspicion entirely left to them. The vary-
ing circumstances of each case make it impossible to lay
down any standard or fixed rule as to what is a reasonable
ground of suspicion. — Hogg v. Ward,ubisup; Broughton
v. Jackson, ubi sup.
In Lister v. Perryman, L. R. 4, H. L. 521, it was held
that it is a rule of law that the jury must find the
facts on which the question of reasonable and probable
cause depends, but that the judge must then determine
whether the facts found do constitute reasonable and
probable cause, and that no definite rule can be laid down
for the exercise of the judge's judgment In an action
for a malicious prosecution, although the question of rea-
sonable and probable cause is an inference to be drawn by
the judge from facts undisputed or found, yet the test is,
not what impression the circumstances would make on
the mind of a lawyer, but whether the circumstances
warranted a discreet man in instituting and following up
the proceedings. Kelly v. Midland Great Western Rail-
way of Ireland Company, 7 Ir. R., C. L. 8.
As framed, this clause is open to this absurdity, that if
any person offers to sell any property which is reasonably
suspected to have been obtained by any offence, to another
person, such person not only may, but is required to
apprehend the person offering the property ; but if a per-
son has any quantity of property which is suspected to
have been stolen, etc., in his possession, but does not offer
it to any one, he cannot be apprehended under this clause ;
so that the right to apprehend under it depends on whether
or not the offender offers the property to any person. It
676 PKOCEDURE ACT.
is true that, by the common law, any peace officer may
lawfully apprehend a person in such a case, if there be
reasonable suspicion of a felony having been committed,
but a private person must not only have reasonable suspi-
cion of a felony having been committed, but must also be
able to prove that one has actually been committed, in
order to justify him in apprehending any person in such a
case ; Beckwith v. Philby, 6 B. & C. 35 ; and if the case
were only a misdemeanor, no person is authorized by the
common law to apprehend after the misdemeanor has
been committed unless with a warrant. Fox v. Gaunt, 3
B. & A. 798. The consequence is that, for instance, any
one who has obtained a drove of oxen by false pretences,
may go quietly on his way, and no one not even a peace
officer, can apprehend him without a warrant; but if a
man offer a partridge, supposed to have been killed in the
close season, he not only may but is required to be appre-
hended by that person, and, if the words of the clause are
strictly interpreted, whether the person so offering the
article is himself even suspected of guilt. See Greaves'
Cons. Acts, 188.
On clause 27 Greaves says :
" As the law existed before this statute passed, there were
sundry cases, in which persons committing indictable offen-
ces by night could only lawfully be apprehended by certain
specified individuals, amongst whom peace officers and
constables were sometimes omitted. The consequence was,
as might naturally be expected, that resistance was fre-
quently made by offenders, and grievous, if not mortal
injuries inflicted upon persons endeavoring to apprehend
such offenders ; indeed many melancholy instances have
occurred where death has been occasioned in nightly fray,
and the party causing such death, though found, commit-
PROCEDURE ACT. 677
ting an offence, fcr which he might have been lawfully
apprehended by some one. has escaped the punishment he
deserved for killing a person, who honestly believed he
had not only a right, but was in duty bound to apprehend
him, because it turned out, upon investigation on the
trial, that such person was not lawfully entitled so to
apprehend, through some cause or other, of which the party
killing had no knowledge at the time. This clause, with a
view to remedying all such cases, authorizes any person, be
he who he may, to apprehend any person found commit-
ting any felony or indictable misdemeanor in the night ;
and it is conceived that it will prove highly beneficial, as
nothing can more strongly tend to the repression of offen-
ces than the certain knowledge that, if the party is found
committing them by any one, such person may at once
apprehend him."
What is night under this clause ? The Larceny Act
defines it, but only for the purposes of that act. Night,
therefore, in this section, is not defined at all, and the
time in which it begins and ends, in each case with refer-
ence to this section, is regulated by the common law.
At common law, night is the time between sunset and
sunrise. Wharton, Law Lexicon, Verb. Night; 3 Chitty,
1104.
Under sec. 29 of our statute, Greaves remarks : " this
clause is new, and clearly unnecessary, as far as it relates
to any felony or indictable misdemeanor, for there is no
doubt whatever that any person in the act of committing
any such offence is liable by the common law to be appre-
hended by any person, but it was introduced at the insti-
gation of the solicitors of the Treasury, as it has been found
that there was great unwillingness to apprehend in such
cases, in consequence of doubts that prevailed among the
public as to the right to do so."
678 PROCEDURE ACT.
ENFO CING PAPEARANCE OF ACCUSED.
30. Whenever a charge or complaint (A) is made before any
justice of the peace for any territorial division in Canada, that
any person has committed, or is suspected to have committed any
treason or felony, or any indictable misdemeanor or offence within the
limits of the jurisdiction of such justice, or that any person guilty or
suspected to be guilty of having committed any such crime or offence
elsewhere out of the jurisdiction of such justice, is or resides or is
suspected to be or reside within the limits of the jurisdiction of such
justice, then, and in every such case, if the person so charged or
complained against is not in custody, such justice may issue his
warrant (B) to apprehend such person, and to cause him to be
brought before him or any other justice for the same territorial
division— 32 33 V., c 30, s. 1.
31. The justice to whom the charge or complaint is preferred
instead of issuing, in the first instance, his warrant to apprehend the
person charged or complained against, may, if he thinks fit, issue his
summons (C) directed to such person, requiring him to appear before
him at the time and place therein mentioned, or before such other
justice of the same territorial division as shall then be there, and if
after being served with the summons in manner hereinafter mentioned,
he fails to appear at such time and place, in obedience to such sum-
mons, the justice or any other justice for the same territorial division
may issue his warrant (D) to apprehend the person so charged or
complained against, and cause such person to be brought before him,
or before some other justice for the same territorial division, to answer
to the charge or complaint, and to be further dealt with according to
law ; but any justice may, if he sees fit, issue the warrant herein-
before first mentioned, at any time before or after the time mentioned
in the summons for the appearance of the accused person — 32-33 V.,
c 30, s. 2.
32. Whenever any indictable ofFence is committed on the high
6eas, or in any creek, harbor, haven or other place, in which the
Admiralty of England have or claim to have jurisdiction, and when-
ever any offence is committed on land beyond the seas for which an
indictment may be preferred or the offender may be arrested in
Canada, any justice for any territorial division in which any person
charged with having committed, or suspected of having ccmmtted
any such offence, is or is suspected to be, may issue his warrant (D2)
to apprehend such person, to be dealt with as therein and hereby
directed.— 32-33 V., c 30, *. 3.
PROCEDURE ACT. 679
33. If an indictment is found by the grand jury in any court of
criminal jurisdiction, against any person then at large, and whether
such person has been bound by any recognizance to appear to answer
to any such cliarge or not, and if such person has not appeared and
pleaded to the indictment, the person who acts as clerk of the Crown
or chief clerk of such court shall, at any time, at the end of the term
or sittings of the court at which the indictment has been found, upon
application of the prosecutor, or of any person on his behalf, and on
payment of a fee of twenty cents, grant to such prosecutor or person
a certificate (E) of such indictment having been found ; and upon
production of such certificate to any justice for the territorial division
in which the offence is alleged in the indictment to have been com-
mitted, or in which the person indicted resides, or is supposed or sus-
pected to reside or to be, such justice shall issue his warrant (F) to
apprehend the person so indicted, and to cause him to be brought
before him or any other ju tice for the same territorial division, to be
dealt with according to law. — 32-33 V., c. 30, s. 4.
34. If the person is thereupon apprehended and brought before
any such justice, such justice, upon its being proved upon oath or
affirmation before him that the person so apprehended is the person
charged and named in the indictment, shall, without further inquiry
or examination, commit (G) him for trial or admit him to bail as
hereinafter mentioned. — 32-33 V., c. 30, s. 5.
35. If the person so indicted is confined in any gaol or prison for
any other offence than that charged in the indictment at the time of
such application and production of such certificate to the justice, such
justice, upon its being proved before him, upon oath or affirmation,
that the person so indicted and the person so confined in prison are
one and the same person, shall issue his warrant (H) directed to the
gaoler or keeper of the gaol or prison in which the person so indicted
is then confined, commanding him to detain such person in his custody
until he is removed therefrom by writ of habeas corpus, or by order
of the proper court, for the purpose of being tried upon the said
indictment, or until he is otherwise removed or discharged out of his
custody by due course of law. — 32-33 Y., c. 30, s. 6
36. Nothing hereinbefore contained shall prevent the issuing or
execution of bench warrants whenever any court of competent
jurisdiction thinks proper to order the issuing of any such warrant. —
32-33 r.,c. 30, s. 7.
37. Any justice may grant or is^ue any warrant as aforesaid, or
any search warrant, on a Sunday or other statutory holiday, as well
as on any other day — 32-33 V., c 30, s. 8.
680 PROCEDURE ACT.
38. Whenever a charge or complaint for any indictable offence is
made before any justice, if it is intended to issue a warrant in the first
instance against the person charged, an information and complaint
thereof (A) in writing, on the oath or affirmation of the informant, or
of some witness or witnesses in that behalf, shall be laid before such
justice.— 32-83 V., c. 30, s. 9.
30. When it is intended to issue a summons instead of a warrant
in the first instance, the information and complaint shall also be in
writing, and be sworn to or affirmed in manner aforesaid, except
whenever, by some act or law, it is specially provided that the infor-
mation and complaint may be by parol merely, and without any
oath or affirmation to support or substantiate the same. — 32-33 V., c
30, s. 10.
40. The justice receiving any information and complaint as afore-
said, if he thinks fit, may issue his summons or warrant as herein-
before directed, to cause the person charged to be and appear as
thereby directed ; and every summons (O shall be directed to the
person so charged by the information and shall state shortly the
matter of such information, and shall require the person to whom it
is directed to be and appear at a certain time and place therein men-
tioned, before the justice who issues the summons, or before such
other justice for the same territorial division as shall then be there,
to answer to the charge and to be further dealt with according to law.
—32-33 V., c 30 s. 13.
41. Every such summons shall be served by a constable or other
peace officer, upon the person to whom it is directed, by delivering
the same to such person, or if he cannot conveniently be so served,
then by leaving the same for him with some person at his last or
usual place of abode. — 32-33 V. , c. 30, s. 14.
42. The constable or other peace officer who serves the same, shall
attend at the time and place, and before the justice in the summons
mentioned, to depose, if necessary, to the service of the summons. —
32-32 V., c. 30, s. 15.
43. If the person served does not appear before the justice at the
time and place mentioned in tlie summons, in obedience to the same,
the justice may issue his warrant (D) for apprehending the person so
summoned, and bringing him before such justice, or before some
other justice for the same territorial division, to answer the charge in
the information and complaint mentioned, and to be further dealt with
according to law.— 32-33 F., c 30, s. 16.
PROCEDURE ACT. 681
44. Every warrant (B) issued by any justice to apprehend any
person charged with any indictable offence shall be under the hand
and seal of the justice issuing the same, and may be directed to all or
any of the constables or other peace officers of the territorial division
within which the same is to be executed, or to any such constable and
all other constables or peace officers in the territorial division within
which the justice issuing the same has jurisdiction, or generally to
all the constables or peace officers within such last mentioned territo-
rial division ; and it shall state shortly the offence on which it is
founded, and shall name or otherwise describe the offender; and it
shall order the person or persons to whom it is directed to apprehend
the offender, and bring him before the justice issuing the warrant,
or before some other justice for the same territorial division, to
answer the charge contained in the information and to be f uJther dealt
with according to law.— 32-33 V., c. 30, s. 17.
45. If, in any warrant or other instrument or document issued^ in
any Province of Canada, at any time, by any justice, it is stated that
the same is given under the hand and seal of any justice signing it,
such seal shall be presumed to have been affixed by him, and ita
absence shall not invalidate the instrument, or such justice may,
any time thereafter, affix such seal, with the same effect as if it had
been affixed when such instrument was signed. — 32-33 V., c- 36, s. 4,
part.
46. It shall not be necessary to make the warrant returnable at
any particular time, but the same shall remain in force until
executed.— 32-33 V., c. 30, s. 18.
47. Such warrant may be executed by apprehending the offender
at any place in the territorial division within which the justice issuing
the same has jurisdiction, or in case of fresh pursuit, at any place in
the next adjoining territorial division, and within seven miles of the
border of the first mentioned territorial division without having the
warrant backed as hereinafter mentioned. —32-33 F., e. 30, s. 19.
48. If any warrant is directed to all constables or other peace
officers in the territorial division within which the justice has juris-
diction, any constable or other peace officer for any place within such
territorial division may execute the warrant at any place within the
jurisdiction for which the justice acted when he granted such warrant,
in like manner as if the warrant had been directed specially to such
constable by name, and notwithstanding the place withiu which such
warrant is executed is not within the place for which he is constable
or peace officer.— 32-33 V., c. 30, s. 20.
682 PROCEDURE ACT.
49. If the person against whom any warrant has been issued can-
not be found within the jurisdiction of the justice by whom the same
was issued, or if he escapes into, or is supposed or is suspected to be,
in any place within Canada, out of the jurisdiction of the justice issu-
ing the warrant, any justice within the jurisdiction of whom the person
so escapes, or in which he is or is suspected to be, upon proof alone
being made on oath or affirmation of the handwriting of the justice
who issued the same, without any security being given, shall make an
indorsement (I) on the warrant, signed with his name, authorizing the
execution of the warrant within the jurisdiction of the justice
making the indorsement; and such indorsement shall be sufficient
authority to the person bringing such warrant, and to all other per-
sons to whom the same was originally directed, and also to all con-
stables and other peace officers of the territorial division where the
warrant has been so indorsed, to execute the same in such other terri-
torial division, and to carry the person against whom the warrant
issued, when apprehended, before the justice who first issued the war-
rant, or before some other justice for the same territorial division, or
before some justice of the territorial division in which the offence men-
tioned in the warrant appears therein to have been committed. — 32-33
V., c. 30, s. 23.
50. If the prosecutor or any of the witnesses for the prosecution
are then in the territorial division where such person has been appre-
hended, the constable or other person or persons who have apprehend-
ed him may, if so directed by the justice backing the warrant, take
him before the justice who backed the warrant, or before some other
justice for the same territorial division or place ; and the said justice
may thereupon take the examination of such prosecutor or witnesses,
and proceed in every respect in the manner hereinafter directed, with
respect to persons charged before a justice with an offence alleged to
have been committed in another t3rritorial division than that in which
such persons have been apprehended. — 32-33 V-, c. 30, s. 24.
SEARCH WARRANTS AND SEARCHES.
See an article on search warrants in the Appendix to
Greaves' Cons. Acts.
51. If a credible witness proves, upon oath (K) before a justice,
that there is reasonable cause to suspect that any property whatso-
ever, on or with respect to which any larceny or felony has been com-
mitted, is in any dwelling-house, out-house, garden, yard, croft or other
PROCEDURE ACT. 683
p'ace or place?, the justice may grant a warrant (K 2), to search such
dwelling-house, garden, yard, croft or other place or places for such
property, and if the same, or any part thereof, is then found, to bring
the same and the person or persons in whose possession such house
or other place then is, before the justice granting the warrant, or some
other justice for the same territorial division. — 32-33 Y., c. 30, s. 12.
52. If any credible witness proves, upon oath before any justice, a
reasonable cause to suspect that any person has in his possession or
on his premises any property whatsoever, on or with respect to which
any offence, punishable either upon indictment or upon summary con-
viction, by virtue of " The Larceny Act" or the " Act respecting the
protection of the Property of Seamen in the Wavy," has been commit-
ted, the justice may grant a warrant to search for such property, as
in the case of stolen goods.— 32-33 V., c. 21, s. 117, part. 33 V., c. 31,
s. 5, part.
53. On complaint in writing made to any justice of the county,
district or place, by any person interested in any mining claim, that
mined-goldor gold-bearing quartz, or mined or unmanufactured silver
or silver ore, is unlawfully deposited in anyplace, or held by any
person contrary to law, a general search warrant may be issued by
such justice, as in the case of stolen goods, including any number of
places or persons named in such complaint, and if, upon such search
any such gold or gold-bearing quartz, or silver or silver ore is found
to be unlawfully deposited or held, the justice shall make such order
for the restoration thereof to the lawful owner as he considers right :
2. The decision of such justice shall be subject to appeal, as in
ordinary cases on summary conviction ; but before such appeal shall
be allowed, the appellant shall enter into a recognizance in the manner
provided by law in cases of appeal from summary convictions, to the
value of the gold or other property in questiou, that he will prosecute
his appeal at the next sittings of any court having jurisdiction in that
behalf, and will pay the costs of the appeal in case of a decision against
him, and, if the defendant appeals, that he will pay such flue, as the
court may impose, with costs-— 32-33 V., e. 21, tt. 33 and 34.
54. If any constable or peace officer has reasonable cause to sus-
pect that any timber, mast, spar, saw-log or other description of
lumber, belonging to any lumberman or owner of lumber, and bearing
the registered trade mark of such lumberman or owner of lumber, is
kept or detained in any saw-mill, mill-yard, boom or raft, without the
knowledge or consent of the owner, such constable or peace officer may
684 PROCEDURE ACT.
enter into or upon the same, and search or examine, for the purpose of
ascertaining whether such timber, mast, spar, saw-log or other descrip-
tion of lumber is detained therein without such knowledge and con-
sent.— 38 V., c. 40, *. I, part.
55. If it is made to appear, by information on oath or affirmation
before a justice, that there is reasonable cause to believe that any per-
son has in his custody or possession, without lawful authority or
excuse, any Dominion or Provincial note, or any note or bill of any
bank or body corporate, company or person carrying on the business
of bankers, or any frame, mould, or implement for making paper in
imitation of the paper used for such notes or bills, or any such paper,
or any plate, wood, stone or other material, having thereon any words
forms, devices or characters capable of producing or intended to pro-
duce the impression of any such note or bill or any part thereof, or
any tool, implement or material used or employed, or intended to be
used or employed, in or about any of the operations aforesaid, or any
forged security, document or instrument whatsoever, or any machin-
ery, frame, mould, plate, die, seal, paper or other matter or thing used
or employed, or intended to be used or employed, in the forgery of any
security, document or instrument whatsoever, such justice may, if he
thinks fit, grant a warrant to search for the same; and if the same is
found upon such search, it shall be lawful to seize and carry the same
before some justice of the district, county or place, to be by him
disposed of according to law, and all such matters and things so
seized as aforesaid shall, by order of the court by which any such
offender is tried, or if there is no such trial, then by order of some
justice of the peace, be defaced and destroyed, or otherwise disposed of
as such court or justice directs. — 32-33 V., c. 19, s. 53.
56. If any person finds or discovers, in any place whatsoever, or
in the custody or possession of any person having the same without
lawful authority or excuse, any false or counterfeit coin resembling
or apparently intended to resemble or pass for any current gold, silver
or copper coin, or any coin of any foreign prince, state or country, or
any instrument, tool or engine whatsoever, adapted and intended for
the counterfeiting of any such coin, or any filings or clippings, or
any gold or silver bullion, or any gold or silver, in dust, solution or
otherwise, which has been produced or obtained by diminishing or
lightening any current gold or silver coin, the person so finding or
discovering shall seize and carry the same forthwith before a justice :
2. If it is proved, on the oath of a credible witness, before any jus-
tice, that there is leasonable cause to suspect that any person has
PROCEDURE ACT. 685
been concerned in counterfeiting current gold, silver or copper coin, or
any foreign or other coin mentioned in the " Act respecting Offences
relating to the Coin," or has in his custody or possession any such false
or counterfeit coin, or any instrument, tool or engine whatsoever,
adapted and intended for the making or counterfeiting of any such
coin, or any other machine used or intended to be used for making or
counterfeiting any such coin, or any such filings, clippings or bullion,
or any such gold or silver, in dust, solution or otherwise, as aforesaid,
any justice may, by warrant under his hand, cause any place whatso-
ever belonging to or in the occupation or under the control of such
suspected person to be searched, either in the day or in the night, and
if any such false or counterfeit coin, or any such instrument, tool or
engine, or any such machine, or any »uch filings, clippings or bullion,
or any such gold or silver, in dust, solution or otherwise, as aforesaid,
is found in any place so searched, to cause the same to be seized and
carried forthwith before a justice:
3. Whenever any such false or counterfeit coin, or any such
instrument, tool or engine, or any such machine, or any such filings*
clippings or bullion, or any such gold or silver, in dust, solution or
otherwise, as aforesaid, is in any case seized and carried before a
justice, he shall, if necessary, cause the same to be secured, for the
purpose of beiug produced in evidence against any person prosecuted
for an offence against such act ; and all such false and counterfeit
coin, and all instruments, to<jls and engines adapted and intended for
the making or counterfeiting of coin, and all such machine-, and all
such filings, clippings and bullion, and all such gold and silver, in
dust, solution or otherwise, as aforesaid, after they have been pro-
duced in evidence, or when they have been seized and are not required
to be produced in evidence, shall forthwith be defaced, by the order
of the court, or otherwise disposed of as the court directs. — 32-33 J'.,
c. 18,s.27.
PROCEEDINGS OX APPEARANCE.
57. The room or building in which the justice takes the examina-
tion and statement shall not be deemed an open court; and the
justice, in his discretion, may order that no person shall have access
to or be or remain in such room or building without his consent or
permission, if it appears to him that the ends of justice will be best
answered by so doing.— 32-33 V., c. 30, s. 35.
58. No objection shall be taken or allowed to any information,
complaint, summons or warrant, for any defect therein in substance
686 PROCEDURE ACT.
or in form, or for any variance between it and the evidence adduced
on the part of the prosecution, before the justice who takes the
examination of the witnesses in that behalf. — 32 33 V., c. 30, ss. 11
and 21.
59. If it appears to the justice that the person charged has been
deceived or misled by any such variance in any summons or warrant,
such justice, at the request of the person charged, may adjourn the
hearing of the case to some future day, and in the meantime may
remand such person, or admit him to bail, as hereinafter mentioned.
—32-33 V., c. 30, s. 22.
60. If it is made to appear to any justice, by the oath or affirma-
tion of any credible person, that any person within Canada is likely
to give material evidence for the prosecution, and will not voluntarily
appear for the purpose of being examined as a witness at the time
and place appointed for the examination of the witnesses against the
accused, such justice shall issue his summons (L) to such person,
requiring him to be and appear before him at a time and place therein
mentioned, or before such other justice for the same territorial divi-
sion as shall then be there, to testify what he knows concerning the
charge made against the accused person. — 32-33 V., c. 30, s. 25.
61. If any person so summoned neglects or refuses to appear at
the time and place appointed bythe summons, and no just excuse is
offered for such neglect or refusal (after proof upon oath or affirma-
tion of the summons having been served upon such person, person-
ally or by being left with some person for him at his last or usual
place of abode), the justice before whom such person should have
appeared may issue a warrant (L 2) to bring such person, at a time
and place therein mentioned, before the justice who issued the sum-
mons, or before such other justice for the same territorial division as
nhall then be there, to testify as aforesaid, and, if necessary, the said
warrant may be backed as hereinbefore mentioned, so that it may be
executed out of the jurisdiction of the justice who issued the same. —
32-33 V., e. 30, *. 26.
62. If the justice is satisfied, by evidence upon oath or affirma-
tion, that it is probable the person will not attend to give evidence
unless compelled so to do, then, instead of issuing such summons,
the justice may issue his warrant (L 3) in the first instance, and the
warrant, if necessary, may be backed as aforesaid. — 32-33 V., c. 30,
».27.
63. If, on the appearance of the person so summoned, either in
PIIOCEDURE ACT. 687
obedience to the summons or by virtue of the warrant, be refuses to
be examined upon oath or affirmation concerning the premises, or
refuses to take such oath or affirmation, or having taken such oath
or affirmation, refuses to answer the questions then put to him con-
cerning the premises, without giving any just excuse for such refusal,
any justice then present and there having jurisdiction ivay, by war-
rant (L 4) commit the person so refusing to the common gaol or
other place of confinement, for the territorial division where the
person so refusing then is, there to remain snd be imprisoned fur any
term not exceeding ten days, unless he in the meantime consents to
be examined and to answer concerning the premises. — 32-33 V., c. 30,
*. 28.
64. If, from the absence of witnesses or from any other reasonable
cause, it becomes necessary or advisable to defer the examination or
further examination of the witnesses for any time, the justice before
whom the accused appears or has been brought may, by his warrant
(M,) from time to time, remand the person accused to the common
gaol in the territorial division for which such justice is then acting,
for such time as he deems reasonable, not exceeding eight clear da} 8
at any one time.— 32-33 V., c. 30, s. 4i.
65. If the remand is for a time not exceeding three clear days, the
justice may verbally order the constable or other person in whose
custody the accused person then is, or any other constable or person
named by the justice in that behalf, to keep the accused person iu
his custody, and to bring him before the same or such other justice
as shall be there acting, at the time appointed for continuing the
examination.— 32-33 V., c. 30, s. 42.
66. Any such justice may order the accused person to be brought
before him, or before any other justice for the same territorial di vision
at any time before the expiration of the time for which such person
has been remanded, and the gaoler or officer in whose custody he then
is shall duly obey such order.— 32-33 F., c. 30, s.43.
67. Instead of detaining the accused person in custody during the
period for which he has been so remanded, any one justice, before
whom such person has appeared or been brought, may discharge him,
upon his entering into a recognizance (M 2, 3), with or without
sureties, in the discretion of the justice, conditioned for his appearance
at the time and place appointed for the coutiuuance of the examination.
—32-33 Y., c. 30, s. 44.
68. If the accused person does not afterwards appear at the tirre
688 PROCEDURE ACT.
and place mentioned in the recognizance, the said justice, or any other
justice who is then and there present, having certified (M 4) upon the
back of the recognizance the non-appearance of such accused person,
may transmit the recognizance to the clerk of the court where the
accused person is to be tried, or other proper officer appointed by law,
to be proceeded upon in like manner as other recognizances ; and
such certificate shall be prima facie evidence of the non-appearance
of the accused person. — 32-33 V., c. 30, s. 45.
60. Whenever any person appears oris brought before any justice
charged with any indictable offence, whether committed in Canada,
or upon the high seas, or on land beyond the sea, and whether such
person appears voluntarily upon summons or has been apprehended,
with or without warrant, or is in custody for the same or any other
offence, such justice, before he commits such accused person to prison
for trial or before he admits him to bail, shall, in the presence of the
accused person (who shall be at liberty to put questions to any witness
produced against him), take the statements (N) on oath or affirmation
of those who know the facts and circumstances of the case, and shall
reduce the same to writing ; and such depositions shall be read over
to and signed respectively by the witnesses so examined, and shall be
signed also by the justice taking the same ; and the justice shall,
before any witness is examined, administer to such witness the usual
oath or affirmation. — 32-33 V., c. 30, ss. 29 and 30, part.
70. After the examinations of all the witnesses for the prosecution
have been completed, the justice or one of the justices, by or before
whom the examinations have been completed, shall, without requir-
ing the attendance of the witnesses, read or cause to be read to the
accused, the depositions taken against him, and shall say to him these
words, or words to the like effect : " Having heard the evidence, do
" you wish to say anything in answer to the charge? You are not
M obliged to say anything unless you desire to do so, but whatever you
" say will be taken down in writing, and may be given in evidence
" against you at your trial ; " and whatever the prisoner then says in
answer thereto shall be taken down in writing (CM and read over to
him, and shall be signed by the justice, and kept with the depositions
of the witnesses, and shall be transmitted with them, as hereinafter
mentioned.— 32-33 V., c, 30, s. 31.
71. The justice shall, before the accused makes any statement,
state to him and give him clearly to understand that he has nothing
to hope from any promise of favor, and nothing to fear from any
PROCEDUPwE ACT. 689
threat which may have been held out to him to induce him to make
any admission or confession of his guilt, but that whatever he then
says may Jie given in evidence against him upon his trial notwith-
standing such promise or threat. — 32-33 V., c. 30, s. 32.
72. Nothing herein contained shall prevent any prosecutor from
giving in evidence any admission or confession, or other statement,
made at any time by the person accused or charged, which by law
would be admissible as evidence against him, — 32-33 F., c. 30, s. 33.
73. When all the evidence offered upon the part of the prosecution
against the accused has beenheard, if the justice is of opinion that
it is not sufficient to put the accused upon his trial for any indictable
offence, such justice shall forthwith order the accused, if in custody,
to be discharged as to the information then under inquiry ; but if in
the opinion of such justice the evidence is sufficient to put the accused
upon his trial for an indictable offence, although it may not raise such
a strong presumption of guilt as would induce him to commit the
accused for trial without bail, or if the offence with which the person
is accused is a misdemeanor, then the justice shall admit the accused
to bail, as hereinafter provided ; but if the offence is a felony, and the
evidence given is such as to raise a strong presumption of guilt, then
the justice shall, by his warrant (P), commit the accused to the com-
mon gaol for the territorial division to which, by law, he may be
committed, or in the case of an indictable offence committed on the
high seas or on land beyond the sea, to the common gaol of the terri-
torial division within which such justice ha* jurisdiction, to be there
safely kept until delivered in due course of law; Provided, that in
cases of misdemeanor the justice who has committed the accused for
trial may, at any time before the first day of the sitting of the court at
which the accused is to be tried, admit him to bail in manner afore-
said, or may certify on the back of the warrant of committal the
amount of bail to be required, in which case any justice for the same
territorial division may admit such person to bail in such amount, at
any time before such first day of the sitting of the court aforesaid. —
32-33 V.,c. 30,s.56.
74. At any time after all the examinations have been completed,
and before the first sitting of the court at which any person so com-
mitted to prison or admitted to bail is to be tried, such person may
require ami shall be entitled to have from the officer or person having
the custody of the same, copies of the depositions on which he has
been committed or bailed, on payment of a reasonable sum for the
same, not exceeding the rate of five cents for each folio of one hun-
dred words.— 32-33 V., c. 30, s- 58.
UU
690 PROCEDURE ACT.
RECOGNIZANCES TO PROSECUTE OR GIVE EVIDENCE.
75. Any justice before whom any witness is examined, may bind,
by recognizance (Q), the prosecutor and every such witness (except
married women and infants, who shall find security for their appear-
ance, if the justice sees fit) to appear at the next court of competent
criminal jurisdiction at which the accused is to be tried, then and there
to prosecute, or prosecute and give evidence, or to give evidence as
the case may be, against the person accused, which recognizance
shall particularly specify the place of residence and the addition or
occupation of each person eutering into the same. — 32-33 V.,c. 30,
s. 36.
76. The recognizance, being duly acknowledged by the person,
entering into the same, shall be subscribed by the justice before whom
the same is acknowledged, and a notice (Q 2) thereof, signed by the
said justice, shall, at the same time, be given to the person bound
thereby.— 32-33 V., c. 30, *. 37.
77. The several recognizances so taken, together with the written
information, if any, the deposition, the statement of the accused, and
the recognizance of bail, if any, shall be delivered by the justice, or
he shall cause the same to be delivered to the proper officer of the
court in which the trial is to be had, before or at the opening of the
court on the first day of the sitting thereof, or at such other time as
the judge, justice or person who is to preside at such court, or at the
trial, orders and appoints. — 32-33 V., c- 30, s. 38.
78. If any witness refuses to enter into recognizance, the justice,
by his warrant (R), may commit him to the common gaol tor the
territorial division in which the person accused is to be tried, there to
be imprisoned and safely kept until after the trial of such accused
person, unless in the meantime such witness duly enters into a
recognizance before a justice for the territorial division in which such
is situate. — 32-33 V., c. 30, s. 39.
79. If afterwards, for want of sufficient evidence in that behalf, or
other cause, the justice before whom the accused person has been
brought does not commit him or hold him to bail for the offence
charged, such justice, or any other justice for the same territorial
division, by his order (R 2) in that behalf, may order and direct the
keeper of the gaol where the witness is in custody to discharge him
from the same and such keeper shall thereupon forthwith discharge
him accordingly. — 32-33 V., c. 30 s. 40.
PROCEDURE ACT. G91
80. If any charge or complaint is made before any justice that 0
any person has committed, within the jurisdiction of such justice,
any of the offences following, that is to say : perjury, subornation of
perjury, conspiracy, obtaining money or other property by false pre-
tences, forcible entry or detainer, nuisance, keeping a gambling house,
keeping a disorderly house, or any indecent assault, and such justice
refuses to commit or to bail the person charged with such offence, to
be tried for the same, then, if the prosecutor desires to prefer an
indictment respecting the said offence, the said justice shall take the
recognizance of such prosecutor, to prosecute the said charge or
complaint, and transmit the recognizance, information and depositions,
if any, to the proper officer, in the same manner as such justice
would have done in case he had committed the person charged to be
tried for such offence.— 32-23 V., c. 29, s. 29. 40 V., c 26, «. 2.
22-23 V.,c. n,s.2,Imp.
See post, remarks under sec. 140.
BAIL.
81. When any person appears before any justice charged with a
felony, or suspicion of felony, other than treason or felony punishable
with deatli, or felony under the " Act respecting Treason and other
Offences against the Queen's authority,'' and the evidence adduced i*,
in the opinion of such justice, sufficient to put the accused on his
trial, but does not furnish such a strong presumption of guilt as to
warrant his committal for trial, the justice, jointly with some other
justice, may admit the accused to bail upon his procuring and
producing such surety or sureties as, in the opinion of the two justices,
will be sufficient to insure his appearance at the time and place when
and where he ought to be tried for the offence ; and thereupon the two
justices shall take the recognizances (S and S 2) of the accused and
his sureties, conditioned for his appearance at the time and place of
trial, and that he will then surrender and take his trial and not
depart the court without leave ; and when the offence committed or
suspected to have been committed is a misdemeanor, any one justice
before whom the accused appears may admit to bail, in manner
aforesaid, and such justice may, in his discretion, require such bail
to justify upon oath as to their sufficiency, which oath the said justice
may administer , and in default of such person procuring sufficient
bail, such justice may commit him to prison, there to be kept until
delivered according to law. — 32-33 V., c. 30, s. 52.
692 PROCEDURE ACT.
82. In all cases of felony or suspicion of felony, other than treason
or felony punishable with death, or felony under the " Act respecting
Treason and other Offences against the Queen's authority," and in
all cases of misdemeanor, where the accused has been finally com-
mitted as herein provided, any judge of any superior or county court,
having jurisdiction in the district or county within the limits of
which the accused is confined, may, in his discretion, on application
made to him for that purpose, order the accused to be admitted to
bail on entering into recognizance with sufficient sureties before two
justices, in such amount as the judge directs, and thereupon the
justices shall issue a warrant of deliverance (S 3) as hereinafter
provided, and shall attach thereto the order of the judge directing the
admitting of the accused to bail. — 3-2-33 V., c. 30, s- 53.
83. No judge of a county court or justices shall admit any person
to bail accused of treason o* felony punishable with death, or felony
under the "Act respecting Treason and other Offences against the
Queen's authority," nor shall any such person be admitted to bail,
except by order of a superior court of criminal jurisdiction for the
Province in which the accused stands committed, or of one of the
judges thereof, or in the Province of Quebec, by order of a judge of
the Court of Queen's Bench or Superior Court; and nothing herein
contained shall prevent such courts or judges admitting any person
accused of felony or misdemeanor to bail when they think it right so
to do.— 32-33 V., c. 30, s. 51.
84. Whenever any justice or justices admit to bail any person
who is then in any prison charged with the offence for which he is so
admitted to bail, such justice or justices shall send to or cause to be
lodged with the keeper of such prison, a warrant of deliverance (S 3)
under his or their hands and seals, requiring the said keeper to dis-
charge the person so admitted to bail if he is detained for no other
offence, and upon such warrant of deliverance being delivered to or
lodged with such keeper, he shall forthwith obey the same. — 32-33
V., c. 30, s. 55.
DELIVERY OF. ACCUSED TO PRISON.
85. The constable or any of the constables, or other person to
whom any warrant of commitment authorized by this or any other
act or law is directed, shall convey the accused person therein named
or described to the goal or other prison mentioned in such warrant,
and there deliver him, together with the warrant, to the keeper of
audi gaol or prison, who shall thereupon give the constable or other
PROCEDURE ACT. 693
person delivering the prisoner into his custody, a receipt (T) for the
prisoner, setting forth the state and condition of the prisoner when
delivered into his custody.— 32-33 V., c. 30, *. 57.
PROCEEDINGS "WHERE OFFENDER IS APPREHENDED IN A DIS-
TRICT IN WHICH THE OFFENCE WAS NOT COMMITTED.
86. Whenever a person appears or is brought hefore a justice in
the territorial division, wherein such justice has jurisdiction, charged
with an offence alleged to have been committed within any territorial
division in Canada wherein such justice has not jurisdiction, such
justice shall examine such witnesses and receive such evidence in
proof of the charge as may be produced before him within his juris-
diction; and if, in his opinion, such testimony and evidence are
sufficient proof of the charge made against the accused, the justice
shall thereupon commit him to the common gaol for the territorial
divi-ion where the offence is alleged to have been commute'), or shall
admit him to bail as hereinbefore mentioned, and shall bind over the
prosecutor (if he has appeared before him) and the witnesses, by
recognizance as hereinbefore mentioned. — 32-33 V., c. 30, s. 4t>.
87. If the testimony and evidence are not, in the opinion of the
justice, sufficient to put the accused upon his trial for the offence with
which he is charged, the justice shall, by recognizance bind over the
witness or witnesses whom he has examined to give evidence as here-
inbefore mentioned ; and such justice shall, by warrant (U), order the
accused to be taken before any justice in and for the territorial divi-ion
where the offence is alleged to have been committed, and shall, at the
same time, deliver up the information and complaint, and also the
depositions and recognizances so taken by him to the constable who
has the execution of the last mentioned warrant, to be by him deliv-
ered to the justice before whom he takes the accused, in obedience to
the warrant; and the depositions and recognizances shall be deemed
to be taken in the case, and shall be treated to all intents and purposes
as if they had been taken by or before the last mentioned justice, aud
shall, together with the depositions and recognizances taken by the
last mentioned justice in the matter of the charge against the accused
be transmitted to the clerk of the court or other proper officer where
the accused ought to be tried, in the manner and at the time herein
mentioned, if the accused is committed for trial upon the charge, or is
admitted to bail.— 32-33 V., c. 30, s. 47.
88. If the accused is taken before the justice last aforesaid, by
virtue of the said last mentioned warrant, the constable or other per-
694 PROCEDURE ACT.
eon or persons to whom the said warrant is directed, and who has
conveyed the accused before such last mentioned justice, shall, upon
producing the accused before such justice and delivering him into the
custody of such person as the said justice directs or names in that
behalf, be entitled to be paid his costs, and expenses of conveying the
accused before such justice. — 32-33 V., c. 30, s. 48.
89. Upon the constable delivering to the justice the warrant,
information, if any, depositions and recognizances, and proving on oath
or affirmation, the handwriting of the justice who has subscribed the
same, such justice, before whom the accused is produced, shall there-
upon furnish such constable with a receipt or certificate (U 2) of his
having received from him the body of the accused, together with the
warrant, information, if any, depositions and recognizances, and of his
having proved to him, upon oath or affirmation, the handwriting of
the justice who issued the warrant. — 32-33 V., c. 30, s. 49.
90. The said constable, on producing such receipt or certificate to
the proper officer for paying such charges, shall be entitled to be paid
all his reasonable charges, costs and expenses of conveying the accused
into such other territorial division, and returning from the same. — 32-
33 V., c. 30, t. 50.
91. If such justice does not commit the accused for trial, or hold
him to bail, the recognizances taken before the first mentioned justice
shall be void— 32-33 V., c. 30, s. 51.
DUTIES OF CORONERS AND JUSTICES.
92. Every coroner, upon any inquisition taken before him, where-
by any person is indicted for manslaughter or murder, or as an acces-
sory to murder before the fact, shall, in presence of the accused, if he
can be apprehended, reduce to writing the evidence given to the jury
before him, or as much thereof as is material, giving the accused full
opportunity of cross-examination ; and the coroner shall have author-
ity to bind by recognizance all such persons as know or declare any-
thing material touching the manslaughter or murder, or the offence of
being accessory to murder, to appear at the next court of oyer and
terminer, or gaol delivery, or other court or term or sitting of a court
at which the trial is to be, then and there to prosecute or give evidence
against the person charged ; and every such coroner shall certify and
subscribe the evidence and all the recognizances, and also the inqui-
sition taken before him, and shall deliver the same to the proper
officer of the court at the time and in the manner specified in the
seventy-seventh section of this Act. — 32-33 V., c. 30, *. 60.
PROCEDURE ACT. 695
93. When any person has been committed for trial by any justice
coroner, the prisoner, his counsel, attorney or agent may notify the
committing justice or coroner, that he will, as soon as counsel ca*h be
heard, move before a superior court of the Province in which such
person stands committed, or one of the judges thereof, or the judge of
the county court, if it is intended to apply to such judge, under the
eighty-second section of this act, for an order to the justice or coroner
for the territorial division where such prisoner is confined, to admit
such prisoner to bail, — whereupon such committing justice or coroner
shall, as soon as may be, transmit ,to the office of the clerk of the
crown, or the chief clerk of the court, or the clerk of the county court
or other proper officer, as the case may be, close under his hand and
seal, a certified copy of all informations, examinations and other evi-
dences, touching the offence wherewith the prisoner has been charged,
together with a copy of the warrant of commitment and inquest, if
any such there is; and the packet containing the same shall be
handed to the person applying therefor, for transmission, and it shall
be certified on the outside thereof to contain the information concern-
ing the case in question. — 32-33 V., c. 30, *. 61.
94. Upon such application to any such court or judge, as in the
next preceding section mentioned, the same order concerning the pris-
oner being bailed or continued in custody shall be made as if the
prisoner was brought up upon a habeas corpus. — 32-33 V., c. 30, *. 62.
95. If any justice or coroner neglects or offends in anything con-
trary to the true intent and meaning of any of the provisions of the
three sections next preceding, the court to whose officer any such
examination, information, evidence, bailment, recognizance or inqui-
sition ought to have been delivered, shall, upon examination and proof
of the offence, in a summary manner, impose such fine upon every
such justice or coroner as the court thinks fit. — 32-33 V., c. 30, «. 63.
96. The provisions of this act relating to justices and coroners,
shall apply to the justices and coroners not only of districts and
counties at large, but also of all other territorial divisions and juris-
dictions.—32-33 V., c 30, s. 64.
REMOVAL OF PRISONERS.
97. The Governor in Council or the Lieutenant Governor in
Council of any Province may, if, from the" insecurity or unfitness of
any gaol of any county or district for the safe custody of prisoners, or
for any other cause, he deems it expedient so to do, order any person
charged with treason or felony confined in such gaol or for whose
696 PROCEDURE ACT.
arrest a warrant has been issued, to be removed to any other gaol of
any other county or district in the same Province, to be named in
such order, there to be detained until discharged in due course of law,
or removed for the purpose of trial to the gaol of the county or district
in which the trial is to take place ; and a copy of such order, certi-
fied by the clerk of the Queen's Privy Council for Canada, or the
clerk of the Executive Council, or by any person acting as such clerk
of the Privy Council or Executive Council, shall be sufficient autho-
rity to the sheriffs and gaolers of the counties or districts respectively
named in such order, to deliver over and to receive the body of any
person named in such order. — 31 V., c. 74, s. 1. 47 V., c. 44, ss. 1
and 2, parts.
98. The Governor in Council or a Lieutenant Governor in Council
may, in any such order, direct the sheriff in whose custody the person
to be removed then is, to convey the said person to the gaol of the
county or district in which he is to be confined, and the sheriff or
gaoler of such county or district to receive the said person, and to
detain him until he is discharged in due course of law, or is removed
for the purpose of trial to any other county or district. — 31 V., c. 74,
s. 2. 47 V., c. 44, ss. 1 and 2, parts.
99. If a true bill for treason or felony, is afterwards returned by
any grand jury of the county or district from which any such person
is removed, against any such person, the court into which such true
bill is returned, may make an order for the removal of such person,
from the gaol in which he is then confined, to the gaol of the county
or district in which such court is sitting, for the purpose of his being
tried in such county or district. — 31 V., c. 74, s. 3, 47 V., c. 44, s. 2,
part.
100. The Governor in Council or a Lieutenant Governor in Council
may make an order as hereinbefore provided in respect of any person
under sentence of imprisonment or under sentence or death, and, in
the latter case, the sheriff to whose gaol the prisoner is removed shall
obey any direction given by the said order or by any subsequent order
in council, for the return of such prisoner to the custody of the sheriff
by whom the sentence is to be executed — 47 V., c. 44, s. 3.
101. When an indictment is found against any person and such
person is confined in any penitentiary or gaol within the jurisdiction
of such court, under warrant of commitment or under sentence for
some other offence, the court may, by order in writing, direct the
warden of the penitentiary or the keeper of such gaol, to bring up
PROCEDURE ACT. 697
such person to be arraigned on such indictment, without a writ of
habeas corpus, and the warden or keeper shall obey such order. —
32-33 V., e. 29, s. 14.
CHANGE OF YEXUE.
102. Whenever it appears to the satisfaction of the court or judge
hereinafter mentioned, that it is expedient to the ends of justice that
the trial of any person charged with felony or misdemeanor should
be held in some district, county or place other than that in which the
offence is supposed to have been committed, or would otherwise be
triable, the court before which such person is or is liable to be indicted
may, at any term or sitting thereof, and any judge who might hold or
sit in such court may, at any other time, either before or after the
presentation of a bill of indictment, order that the trial shall be
proceeded with in some other district, county or place within the
same Province, named by the court or judge in such order ; but such
order shall be made upon such conditions as to the payment of any
additional expense thereby caused to the accused, as the court or
judge thinks proper to prescribe :
2. Forthwith upon the order of removal being made by the court
or judge, the indictment, if any has been found against the prisoner,
and all inquisitions, informations, depositions, recognizances and
other documents whatsoever, relating to the prosecution against him,
shall be transmitted by the officer having the custody thereof to the
proper officer of the court at the place where the trial is to be had,
and all proceedings in the case shall be had, or, if previously com-
menced, shall be continued in such district, county or place, as if the
case had arisen or the offence had been committed therein :
3. The order of the court, or of the judge, made under this section,
shall be a sufficient warrant, justification and authority, to all
sheriffs, gaolers and peace officers, for the removal, disposal and
reception of the prisoner, in conformity with the terms of such
order; and the sheriff may appoint and empower any con-table to
convey the prisoner to the gaol in the district, county or place in
which the trial is ordered to be had :
4. Every recognizance entered into for the prosecution of any person,
and every recognizance, as well of any witness to give evidence, as of
any person for any offence, shall, in case any such order, as provided
by this section, is made, be obligatory on each of the persons bound
by such recognizance as to all things therein mentioned with reference
to the said trial, at the place where such trial is so ordered to be had,
698 PROCEDURE ACT.
in like manner as if such recognizance had been originally entered
into for the doing of such things at such last mentioned place; pro-
vided that notice in writing shall be given either personally or by
leaving the same at the place of residence of the persons bound by
such recognizance, as therein described, to appear before the court,
at the place where such trial is ordered to be had. — 32-33 V., c. 29,
s. 11.
By this section the court or judge has a discretionary
power of a wide extent : " Whenever it appears to the
satisfaction of the court or judge," says the statute, and
when the court or judge declares that it so appears, the
matter quoad hoc is at an end, the venue is changed and
the trial must take place in the district, county or place
designated in the order.
The words of the statute require that the court or judge
be satisfied that the change of venue is expedient to the
ends of justice. Mr. Justice Sanborn, In ex parte Brydges,
18 L. C. J. 141, said that " the common law discourages
change of venue, and it is only to be granted with caution
and upon strong grounds."
The following cases decided in England may be usefully
noticed here ;
Where there was a prospect of a fair trial the court refused
to change the venue, though the witnesses resided in ano-
ther county. — R. v. Dunn, 11 Jur. 287.
The court will not permit the venue in an indictment to
be changed for any other cause than the inability to obtain
a fair trial in the original jurisdiction. — R. v. Patent Eureka
and Sanitary Manure Company, 13 L. T., N. S. 365.
The court has no power to change the venue in a crimi-
nal case, nor will they order a suggestion to be entered
on the roll to change the place of trial in an information
for libel, on the ground of inconvenience and difficulty in
securing the attendance of the defendant's witnessses. —
R. v. Cavendish, 2 Cox, 176.
PROCEDURE ACT. 699
The court will remove an indictment for a misdemeanor
from one county to another, if there is reasonable cause to
apprehend or suspect that justice will not be impartially
administered in the former county. — R. v. Hunt, 3 B. & A.
444 ; 2 Chit, 130.
The court has a discretionary power of ordering a sug-
gestion to be entered on the record of an indictment for
felony, removed thither by certiorari, for the purpose of
awarding the jury process into a foreign county ; but this
power will not be exercised unless it is absolutely neces-
sary for the purpose of securing an impartial trial. — R. v.
Eolden, 5 B. & A. 347.
In the case of R. v. Harris et al., 3 Burr., 1330, the
private prosecutors, in their affidavit on an application
made by them for a change of the venue, went no further
than to swear generally * that they verily believed that
there could not be a fair and impartial trial had by a jury
of the City of Gloucester, " without giving any particular
reasons or grounds for entertaining such a belief. The case
to be tried was an information against the defendants, as
aldermen of Gloucester, for a misdemeanor in refusing to
admit several persons to their freedom of the city, who
demanded their admission, and were entitled to it, and,
in consequence, to vote at the then approaching election of
members of Parliament for that city, and whom the defen-
dants did admit after the election was over ; but would
not admit them till after the election, and thereby deprived
them of their right of voting at it. The prosecutors had
moved for this rule, on a supposition " that the citizens of
the city could not but be under an influence or prejudice
in this matter." The application was refused.
" There must be a clear and solid foundation for it,"
said Lord Mansfield ; " now, in the present case, this gene-
700 PROCEDURE ACT.
ral swearing to apprehension and belief only is not a suffi-
cient ground for entering such a suggestion, especially as
it is sworn on the other side that there is a list returned
up, consisting of above six hundred persons duly qualified
to serve. Surely a person may espouse the interest of one or
another candidate at an election, without thinking himself
obliged to justify, or being even inclined to defend, the
improper behavior of the friends or agents of such candi-
date.''
" The place of trial, " said Mr. Justice Denison, " ought
not to be altered from that which is settled and established
by the common law, unless there shall appear a clear and
plain reason for it, which cannot be said to be the present
case."
" Here is no fact suggested," said Mr. Justice Foster,
" to warrant the conclusion that there cannot be a fair and
impartial trial had by a jury of the City of Gloucester. It
is a conclusion without premises. The reason given, or
rather the supposition, would hold as well, in all cases
of riots at elections. This is no question relating to the
interest of the voters ; it is only whether the defendants,
the persons particularly charged with this misdemeanor,
have personally acted corruptly or not."
" There was no rule better established," said Mr. Jus-
tice Wilmot, " than that all causes shall be tried in the
county, and by the neighborhood of the place where the
fact is committed ; and, therefore, that rule ought never to
be infringed, unless it plainly appears that a fair and im-
partial trial cannot be had in that county; It does
not follow that because a man voted on one side or on the
other he would therefore perjure himself to favor that
party when sworn upon a jury, God forbid ! The freemen
of this corporation are not at all interested in the personal
PROCEDURE ACT. 701
conduct of these men upon this occasion ; the same rea-
soning would just as well include all cases of election
riots."
It may be remarked on this case : (1.) That the appli-
cation for a change of the venue was made by the prosecu-
tion ; there is no doubt that much stronger reasons must
then be given than if the application is made by the defen-
dant : (2.) That the case dates from 1762, and that in some
of the more recent cases on this point, the court seems to
have granted such an application, on the part of the defen-
dant, with less reluctance. This is easily explained; it
must have been an unheard of thing, at first, to change the
venue, at common law, at the time where the jurors them-
selves were the witnesses, and the only witnesses ; where
they were selected for each case because they were sup-
posed to know the facts. Where no other witnesses, no
evidence whatever was offered to them, it may well be
presumed that a change in the venue was not allowable
under any circumstances. The rule must then invariably,
inflexibly, have been that the venue should always be laid
in the county where the offence was committed. The strict-
ness of the rule can have been relaxed only by degrees,
and even when, for a long period, the strongest reason in
support of it had ceased to exist, by the changes which
have given us the present system of jury trial, it is not
surprising to find the judges still adhering to it as much as
possible. But, insensibly, a change is perceptible in the
decisions, and now, under our statute, there is no doubt
that every time, for any reason whatever, it is expedient
to the ends of justice that a change in the venue, upon any
criminal charge, should take place, it should be granted
whether applied for by the prosecution or by the defence.
Another decision, in England, on the question may be
noticed here :
702 PEOCEDURE ACT.
The court removed an indictment from the Central
Criminal Court, and changed the venue from London to
Westminster, where it was a prosecution instituted by the
Corporation of London for a conspiracy in procuring false
votes to be given at an election to the office of bridge-
master. — M. v. Simpson, 5 Jur. 462.
A case in the Province of Quebec, gave rise to a full
discussion on this section of the Procedure Act. — R. v.
Brydges, 18 L. G.J. 141.
In this case, a coroner's jury in the district of Quebec
returned a verdict of manslaughter against the defendant,
a resident of Montreal. The coroner issued his warrant,
upon which the defendant was arrested ; he gave bail, and
then, in Montreal, before Mr. Justice Badgley, a judge of
the Court of Queen's Bench, made application in chambers
for a change in the venue ; the only affidavit, in support
of the application, was the defendant's, who swore that he
could not have a fair trial in the district of Quebec. The
crown was served with a notice of the application, and
resisted it ; Mr. Justice Badgley, however, granted it, and
ordered that the trial should take place in Montreal,
deciding (1) that, under the statute, a judge of the Court
of Queen's Bench, in chambers in Montreal, may order the
change of the venue from Quebec to Montreal, of the trial
of a person charged with the commission of an offence in
the Quebec district, and (2) that this order may be given
immediately after the arrest of the prisoner.
On this last point, there is no room for doubt. By the
statute, as soon as a person is charged with an offence,
the application can be made, and there is no doubt, that in
Brydges' case, such an application could even have been
made before the issuing of the warrant of arrest against
him. The finding by the coroner's inquisition of man-
PROCEDURE ACT. 703
slaughter against him was the charge. From the moment
this finding was delivered by the jury, Brydges stood
charged with manslaughter. In fact, this finding was equi-
valent to a true bill by a grand jury, and upon it, he had, if
remaining intact, to stand his trial, whether or not a bill
was later submitted to the grand jury, whether the grand
jury found " a true bill," or a " no bill " in the case. See
R. v. Maynard, R.& R. 240; R.v. Cole, 2 Leach, 1095;
and the authorities cited in R. v. Tremblay, 18 L. C. J.
158.
Upon the other point decided, in this case, by Mr. Jus-
tice Badgley, as to the jurisdiction he had to grant the
order required, there seemed at first to be more doubt. But
the question was set at rest, by the judgment afterwards
given in the case by Ramsay and Sanborn, J. J., who
entirely concurred with Mr. Justice Badgley in his ruling
on the question, as follows :
Ramsay, J. — " Before entering on the merits of these
rules it becomes necessary to deal with a question of juris-
diction which has been raised on the part of the crown.
It is urged that this case is not properly befure us, and
that if it is, that the law under wlrich it is brought before
the court, sitting in this district, is of so inconvenient and
dangerous a character that it should be altered. "With the
inconvenience of the law we have nothing to do ; neither
ought we to express any opinion as to whether the grounds
on which the learned judge who gave the order to change
the venue were slight or not, provided he had jurisdiction.
The whole question rests on the interpretation of section
11 of the Criminal Procedure Act of 1869. That section
is in these words : (His Lordship read the section.)
" We have only to ask whether, at the time this order
was given, Judge Badgley was a judge who might hold
704 PEOCEDURE ACT.
or sit in the Court of Queen's Bench. If so, he had
jurisdiction.
" But we are told that the statute evidently intended
that the judge giving the order should be actually sitting
in the district in which the offence is alleged to have taken
place. There is no trace of any such intention in the
statute and there is no rule of interpretation of statutes so
well established as this, that where the words of a statute
are clear and sufficient they must be taken as they stand.
If courts take upon themselves, under the pretext of inter-
preting the law, to diminish or extend the clearly expressed
scope of a statute, they are usurping the powers of the
legislature, and assuming a responsibility which in no way
devolves on them. In the particular case before us it
does not appear clear to my mind that it was the intention
of the legislature to limit the power to change the venue
to a judge sitting in the district where the offence was
said to be committed. In the first place, our statute goes
far beyond the old law, which, I believe, is still unchanged
in England. Not only is the power given here to a judge
in chambers to change the venue, but he may do so before
the bill of indictment is either laid or found. The object
was to protect a man from being even put to trial by
a prejudiced grand jury, and this could only be effectually
done by giving the power to any judge who could hold or
sit in the court to change the venue, for it will be observed
that in 1869, when the act was passed, there were
many districts in this Province in which there was no
resident judge, and in Ontario the judges of the superior
courts all live in Toronto, and, so far as I know, in
each of the other Provinces, they live in the capital
town. Unless, then, there was to be a particular provi-
sion for the Province of Quebec the law had to be drawn
PROCEDURE ACT. 705
as we find it. Besides this the Court of Queen's Bench is
not for the district, but for the whole Province. The
object of dividing the Province into districts is for conve-
nience in bringing suits, but the jurisdiction of the court is
general. This has never been doubted, and it has been
the practice both in England and this country to bail in
the place where the prisoner is arrested. In the case of
Blossom, where the taking of bail was vigorously resisted by
the crown, this court, sitting at Quebec, bailed the prisoner
who was in jail here. This is going a great deal farther,
but the power of the court to bail was not, and, I think,
could not be questioned. We are told that great incon-
venience might arise if this statute be not restrained.
This is really no valid objection to the law. There are no
facultative acts which may not be abused one way or an-
other. A discretionary power involves the possibility of
its indiscreet exercise, but that is not ground for us to
annul the law creating it. In this case the inconveniences
referred to are not specially apparent — the prisoner arrested
in Montreal was bailed there, and made his application to
have the venue changed to the district where he resided
and where he actually was. The order made by Mr.
Justice Badgley could hardly then be used as a precedent
for an abusive use of the statute. It must be understood
in saying this I do not refer to the sufficiency or insuf-
ficiency of the affidavit on which the order was given,
which is not in any way before us, but solely to the cir-
cumstance of the accused being actually before the judge
here. As the point is a new one, and as questions of
jurisdiction are always delicate, we would willingly have
reserved it for the decision of all the judges; but the act
allowing us to reserve cases is unfortunately as much too
narrow as the statute before us appears to Mr. Bitehie to
YV
706 PROCEDURE ACT.
be too wide in its phraseology. We can only reserve after
conviction, and irregular reservations for the opinion of
the judges have no practically good results. We must,
therefore, give the judgment to the best of our ability, and
I must say for my own part that I cannot see any diffi-
culty in the matter. The words of the statute are per-
fectly unambiguous, and there is no reason to say that
they lead to any absurd conclusion."
Sanborn, J. — '•' First, as to the jurisdiction. It is
objected that the venue was improperly changed, and that
this inquisitson ought to be before the court at Quebec.
If we are not 'legally' possessed of the inquisition, of
course we cannot entertain these motions to quash. This
has been fully and exhaustively treated by the President
of the court. It is merely for us to enquire : Had Mr.
Justice Badgley the power to order the trial to take place
here instead of in the district of Quebec; where the acci-
dent occurred ? The 11 section of the Criminal Procedure
Act undoubtedly gives that power. He was a judge,
entitled to sit at the court where the 'party was sent for
trial. The jurisdiction of any of the judges of the Queen's
Bench is not local for any district, but extends to all parts
of the Province."
The words "he was a judge, entitled to sit at the court
where the party was sent for trial,'' in Mr. Justice San-
born's remarks appear not supported by the statute. It is
the court at which the party charged with a crime was at
first liable to be indicted, or any judge who might hold or
sit in that court, who have jurisdiction in the matter, not
the court where the party is sent for trial nor a judge
who can hold and sit in such last mentioned court. Of
course, in Brydges' case this distinction could not be made,
as Mr. Justice Badgley, who gave the order to change the
PROCEDURE ACT. 707
venue, could sit in the court at Quebec as well as in Mont-
real, a^d in Montreal as well as in Quebec. But suppose
that such an application is made to a judge who can hold
or sit iu a court of quarter sessions, at which the party-
charged is or is liable to be indicted ; and there are not
many cases where a party accused is not liable to be indict-
ed before the court of quarter sessions ; the statute gives
j urisdiction only to the court of quarter sessions of and for
the locality where the trial should take place, in the ordi-
nary course of law, or to a judge thereof, and not to a
court or judge of another locality ; and the judge of the
quarter sessions for Montreal, for instance, could not, in a
case from the district of Quebec, order the trial to take
place in Montreal, though he would be a judge entitled to
sit at the court ivhere the party was sent for tr
See in re Sproule, 12 S. C. R. 140, questions as to change
of venue.
Change of venue allowed upon prisoner's solicitor's affi-
davit that from conversations he had had with the jurors,
he was convinced of a strong prejudice against the pris-
oner. R. v. McEneaney, 14 Cox, 87. — See R. v. Walter,
14 Cox, 579.
Held, that 32-33 V., c. 29, s. 11, does not authorise any
order for the change of the place of trial of a prisoner in
any case where such change would not have been granted
under the former practice, the statute only affecting pro-
cedure.—i2. v. McLeod, 5 P. R. (Ont.) 181.
The power so granted is purely discretionary, but, where
application in made on the part of the accused, it will be
a sufficient ground that persons might be called on the jury
whose opinions might be tainted with prejudice, and whom
the prisoner could not challenge. — R. v. Russell, Ramsay's
App. Cos. 199. — See Ex parte Corwin, 24 L. C. J. 104,
2 L. N. 364.
708 PKOCEDUKE ACT.
INDICTMENTS.
103. It shall not be be necessary that any indictment or any record
or document nlative to any criminal case be written on parchment.
—32-33 V., c. 29, s. 13.
By the interpretation clause, sec. 2, ante, the word indict-
ment includes information, presentiaent, and inquisition,
as well as pleas, etc.
By the 4 Geo. 2, c. 26, and 6 Geo. 2, c. 14, " all indict-
ments, informations, inquisitions and presentments shall
be in English, and be written in a common legible hand,
and not court hand, on pain of £50 to him that shall sue
in three months."
They should be engrossed on plain parchment without
a stamp. No part of the indictment must contain any
abbreviation, or express any number or date by figures,
but these as well as every other term used, must be express-
ed in words at length, except where a fac-simile of an in-
strument is set out. — 3 Burn 35; 1 Chitty, 175.
Formerly, like all other proceedings, they were in Latin,
and though Lord Hale, Vol. I. p. 168, thinks this language
more appropriate, as not exposed to so many changes and
alterations, in modern times, "it was thought to be of very
greater rise and importance," says his annotator Emlyn,
" that they should be in a language capable of being known
and understood by the parties concerned, whose lives and
liberties were to be affected thereby."
Before confederation in Ontario and Quebec, the indict-
ment in cases of high treason only had to be written on
parchment.— C. S, C, c. 99, s. 20.
By section 133 of the British North America Act,
the French language may be used in any of the courts
of Quebec, and in any court established under that act.
104. It shall not be necessary to state any venue in the body of
any indictment ; and the district, county or place named in the
PROCEDUEE ACT. 709
margin thereof, shall be the venue for all the facts stated in the body
of the indictment ; but if local description is required, such local
description shall be given in the body thereof. — 32-33 V., c. 29, s. 15.
This section is taken from sec. 23, 14-15 V., c. 100, of
the Imperial statutes, upon which Greaves says ;
" This section was framed with the intention of placing
the statement of venue upon the same footing in criminal
cases upon which it was placed in civil proceedings by
Reg. Gen., H. T., 4 Wm. IV. By this section, in all cases,
except where some local description is necessary, no place
need be stated in the body of the indictment ; thus in
larceny, robbery, forgery, false pretences, etc., no venue
need be stated in the body of the indictment. In such
cases, before the passing of this act, although it was consi-
dered necessary to state some parish or place, it was quite
immaterial whether the offence was committed there or at
any other parish in the county. On the other hand, in
burglary, sacrilege, stealing in a dwelling house, etc., the
place where the offence was committed must be stated in
the indictment. It was necessary so to state it before the
act, and to prove the statement as alleged, and so it is
still, subject ever to the power of amendment given by the
first section." (Sec. 143 post.)
" The venue, that is, the county in which the indict-
ment is preferred, is stated in the margin thus " Middle-
sex,'" or " Middlesex, to-wit," but the latter method is
the most usual. In the body of the indictment a special
venue used to be hud, that is, the facts were in general
stated to have arisen in the county in which the indictment
was preferred." 3 Burn, 21.
': The place (or special venue, as it is technically termed)
must be such as in strictness the jury who are to try the
cause should come from. At common law, the jury, in
strictness, should have come from the town, hamlet, or
710 PROCEDURE ACT.
parish, or from the manor, castle, or forest, or other known
place out of a town, where the offence was committed, and
for this reason, besides the county, or the city, borough,
or other part of the county to which the jurisdiction of the
court is limited, it was formerly necessary to allege that
every material act mentioned in the indictment was com-
mitted in such a place , But now by stat. 14-15,
V., c. 100 s. 23," it shall not be necessary to state any
venue in the body of any indictment, but the county, city,
or other jurisdiction named in the margin thereof, shall be
taken to be venue for all the facts stated in the body of
such indictment. Provided that in cases where local
description is or hereafter shall be required, such local
description shall be given in the body of the indictment."
— Archbold, 49.
The cases in which a local description is still necessary
in the body of the indictment, are :
Burglary ; 2 Russ, 47. — House-breaking ; R. v. Bulloch,
1 Moo. C. C. 324, note a. Stealing in a dwelling-house*
under sections 45 and 46 of the Larceny Act; R. v.
Napper, 1 Moo. C. C. 44. Being found by night armed,
with intent to break into a dwelling-house, under sec 43
of the Larceny Act, and all the offences under sec. 35 to
43 of the Larceny Act ; R. v. Jarrald, L. & C. 301.
Riotously demolishing churches, houses, machinery, etc.,
or injuring them, under sections 9-10 of c. 147 ; R. v.
Richards, 1 M. & Rob. 177. Maliciously firing a dwelling-
house, perhaps an out-house, and probably all offences
under sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 13 and 14 of the
act as to malicious injuries to property, but not the offences
under sees. 18, 19, 20, 21, of the same act ; R. v. Wood-
ward, 1 Moo. C. G. 323. Forcible entry ; Archbold, 50.
Nuisances to highways ; R. v. Steventon, 1 C. & K. 55.
PROCEDURE ACT. 711
Malicious injuries to sea-banks, milldams, or other local pro-
perty ; Taylor Ev., 1 Vol., par. 227. Not repairing a
highway ; in which even a more accurate description is
necessary, as the situation of the road within the parish,
etc. Indecent exposure in a public place; R. v. Harris,
11 Cox, 659.
But in most cases of want of local description where
necessary or of variance between the proof and the alleg-
ations in the indictment respecting the place, local des-
cription, etc., the courts would now allow an amendment.
It may well be said, with Taylor, Ev., Vol. 1.
228.
" It would be extremely difficult to advance any
sensible argument in favor of this distinction, which
the law recognizes between local and transitory offences.
On an indictment, indeed, against a parish for not
repairing a highway, it may be convenient to allege,
as it will be necessary to prove, that the spot out of
repair is within the parish charged, but why a
burglar should be entitled to more accurate information
respecting the house he is charged with having entered,
than the highway robber can claim as to the spot where
his offence is stated to have been committed, it is im
ble to say ; either full information should be given in all
cases or in none."
In offences not of local nature, it is clearly not now
necessary to allege in the body of the indictment where
the offence was committed, and it is the practice now, in
England, not to do it. Au iudictment for larceny, for
instance, runs thus :
Suffolk, to wit : The Jurors for Our Lady the Queen
upon their oath present, that J. S., on the first day of
June, in the year of our Lord one thousand eight hundred
712 PROCEDUEE ACT.
and sixty, three pairs of shoes of the goods and chattels of
J. N., feloniously did steal, take and carry away, against
the peace of Our Lady the Queen, her crown and dignity :
Archbold, 313. In 11 Cox, 101, 526, 593, and 12 Cox,
23, 393 and 456, may be seen indictments, so without a
special venue.
The laying of the information and subsequent proceedings
are the commencement of the prosecution. So, if a statute
enacts that an offence must be prosecuted wthin%a certain
time, the information must be within that time, but not
necessarily, the indictment. — JR. v. Austin, 1 C. & K.
621; R. v. Kerr, 26 U. C. C. P. 214, and cases there
cited.
105. The abolition of the benefit of clergy shall not prevent the
joinder in any indictment of any counts which might have been
joined but for such abolition. — 32-33 V., c. 29, s. 16.
This is the 7 & 8 Geo. IV., c. 28, s. 6, of the Imperial
Statutes.
Lord Hale calls the benefit of clergy, " a kind of relaxa-
tion of the severity of the judgment of the law,'' and adds that
" by the ancient privilege of the clergy and by the confirm-
ation and special concession of the statute of 25 Edw. III.,
c. 4 (A. D. 1351), the benefit of clergy was to be allowed
in all treasons and felonies touching other persons than
the King himself and his royal Majesty". — 1 Hale, 517.
The two following extracts will give, succinctly, what
was the law of " benefit of clergy : "
" Benefit of clergy (privilegium clericale), an arrest
of judgment in criminal cases. The origin of it was this :
Princes and States, anciently converted to Christianity,
granted to the clergy very bountiful privileges and exemp-
tions, and particularly an immunity of their persons in
criminal proceedings before secular judges. The clergy after-
PROCEDURE ACT. 713
wards increasing their wealth, number and power, claimed
this benefit as an indefeasible right, which had been merely
matter of royal favor, founding their principal argument
upon this text of scripture, ' Touch not mine anointed, and
do my prophets no harm. ' They obtained great enlarge-
ments of this privilege, extending it not only to persons
in holy orders, but also to all who had any kind of sub-
ordinate ministration in the church, and even to laymen if
they could read, applying it to civil as well as criminal
causes. In criminal proceedings the prisoner was first
arraigned, and then he might have claimed his benefit of
clergy, by way of declinatory plea, or after conviction, by
way of arrest of judgment. He was then, if a layman, burnt
with a hot iron in the brawn of his left thumb, in order to
show that he had been admitted to this privilege, which
was not allowed twice to a layman. If a clerk he was handed
over to the ecclesiastical court, and after the solemn farce
of a mock trial, he was usually acquitted, and was made a
new and an innocent man. These exemptions at length
grew so burthensome and scandalous, that the legislature,
from time to time, interfered, until the 7-8 Geo. IV.,
c. 58, s. 6, abolished benefit of clergy : " Wharton, Law
Lexicon, verb. " benefit of clergy. "
" This has now become a title of curiosity only, the stat.
7-8 Geo. IV., c. 28, having enacted by sec. 6, that
benefit of clergy with respect to persons convicted of felony
shall be abolished ; and by sec. 7, that no person convicted
of felony shall suffer death, unless for some felony which
was excluded from the benefit of clergy before or on the
first day of the then session of Parliament (Feb. 8, 1827),
or which should be made punishable with death by some
statute passed after that day.''
This benefit of clergy constituted in former times so
remarkable a feature in criminal law, and a general ac-
714 PROCEDURE ACT.
quaintance with its nature is still so important for the
illustration of the books, that it may be desirable to sub-
join further notice on the subject. It originally consisted
in the privilege allowed to a clerk in orders, when prose-
cuted in the temporal court, of being discharged from
thence and handed over to the court christian, in order to
make a canonical purgation, that is to clear himself on his
own oath, and that of other persons as his compurgators.
Vide Beeves' s Hist. Eng. L. vol. 2, pp. 114, 134 : 25 Edw.
III. st. 3, 4 ; a privilege founded, as it is said, upon the
text of scripture, " Touch not mine anointed, and do my
prophets no harm. " In England this was extended by
degrees to all who could read, and so were capable of becom-
ing clerks : Reeves ubi supra et vol. 4, p. 156. But by 4
Hen. VII, c. 13, it was provided, that laymen allowed
their clergy should be burned in the hand, and should claim
it only once ; and as to the clergy, it became the practice
in cases of heinous and notorious guilt, to hand them over
to the ordinary, absque purgatione facienda, the effect of
which was, that they were imprisoned for life : 4 Black-
stone, 369. Afterwards, by 18 Eliz. c. 7, the delivering over
to the ordinary was abolished altogether, but imprisonment
was authorized in addition to burning in the hand. By 5
Anne, c. 6, the benefit of clergy was allowed to those enti-
tled to ask it, without reference to their ability to read. By
4 Geo. I., c. 11 ; 6 Geo. I., c. 23, and 19 Geo. II., c. 74
the punishment of transportation was authorized in certain
cases, in lieu of burning in the hand ; and by the act last
mentioned the court might impose, instead of burning in
the hand, a pecuniary fine, or (except in manslaughter)order
the offender to be whipped. As to the nature of the offences
to which the benefit of clergy applied, it had no application
except in capital felonies, and from the more atrocious of
PROCEDURE ACT. 715
these it had been taken away by various statutes prior to
its late abolition by 7-8 Geo. IV, c. 28, s. 6. As the
law stood at the time of that abolition, clerks in orders,
were, by force of the benefit of clergy, discharged in cler-
gyable felonies without any corporal punishment whatever,
and as often as they offended, and the only penalty being
a forfeiture of their goods ; and the cose was the same
with peers and peeresses, as to whom see. -4-5 V., c.
22 ; but they could claim it only for the first offence. As
to commoners also, they could have benefit of clergy only
for the first offence, and they were discharged by it from
the capital punishment only, being subject on the other
hand, not only to forfeiture of goods, but to burning in the
hand, whipping, fine, imprisonment, or in certain cases
transportation in lieu of capital sentence." — 1 Hale, p. 517.
By the general repeal act of 1869, section 97 of chap. 99
of the Consolidated statutes of Canada remained in force.
It is as follows :
" Benefit of clergy with respect to persons convicted of
felony having been abolished in Upper Canada on the
thirteenth day of February, 1833, and in Lower Canada
from and after the first day of January, 1842, no person
convicted of felony shall suffer death, unless it be for some
felony which was excluded from the benefit of clergy by
the law in force in that part of this province in which the
trial is had when the benefit of clergy was abolished
therein, or which has been made punishable with death by
some act passed ?ii ce that time."
It is now repealed by 4-9 V., c. 4, D.
JOINDER OF OFFENCES.
In R. v. Jones, 2 Camp. 131, Lord Ellenborough said:
" In point of law, there is no objection to a man being
716 PROCEDURE ACT.
tried on one indictment for several offences of the same
sort. It is usual, in felonies, for the judge, in his discre-
tion, to call upon the counsel for the prosecution to select
one felony, and to confine themselves to that; but this
practice has never been extended to misdemeanors."
In M. v. Benfield, 2 Burr. 980, an information against
five for riot and libel had been filed, on which three of
them were acquitted of the whole charge, and Benfield and
Saunders found guilty of the libel. It was objected that
several distinct defendants charged with several and dis-
tinct offences cannot be joined together in the same indict-
ment or information, because the offence of one is not the
offence of the other. But it was determined that several
offences may be joined in one and the same indictment or
information, if the offence wholly arise from such a joint
act as is criminal in itself, without any regard to any par-
ticular default of the defendant which is peculiar to him-
self ; as, for instance, it may be joint for keeping a gaming
house, or for singing together a libellous song, but not for
exercising a trade without having served an apprentice-
ship, because each trader's guilt must arise from a defect
peculiar to himself, and 2 Hawkins, 140, was said to be
clear and express in this distinction.
In Young's case, 1 Leach, 511, Buller, J., said : " In mis-
demeanors the case in Burrowes, R. v. Benfield, 2 Burr.
980, shews that it is no objection to an indictment that it
contains several charges. The case of felonies admits of
a different consideration ; but even in such cases, it is no
objection in this stage of the prosecution (writ of error.)
On the face of an indictment every count imports to be for
a different offence, and is charged as at different times ;
and it does not appear on the record whether the offences
are or are not distinct. But, if it appear before the defen-
PROCEDURE ACT. 717
dant has pleaded, or the jury are charged, that he is to be
tried for separate offences, it has been the practice of the
judges to quash the indictment, lest it should confound
the prisoner in his defeaee, or prejudice him in the chal-
lenge of the jury ; for he- might object to a juryman's try-
ing one of the offences, though he might have no reason
to do so in the other. But these are only matters of pru-
dence and discretion. If the judge who tries the prisoner
does not discover it in time, I think he may put the prose-
cutor to make his election on which charge he will proceed.
I did it at the last sessions at the Old Bailey, and hope
that, in exercising that discretion, I did not infringe on
any rule of law or justice. But, if the case has gone to
the length of a verdict, it is no objection in arrest of judg-
ment. If it were it would overturn every indictment
which contains several counts."
In the case of R. v. Heywood, L. <£ C. 451, this decision
in Young's case was followed by the court of crown cases
reserved, and it was held, that, although it is no objection
in point of law to an indictment that it charges the pris-
oner with several different felonies iu different counts, yet,
as matter of practice, a prisoner ought not, in general, to
be charged with different felonies in different counts of an
indictment ; as, for instance, a murder in one count, and a
burglary in another, or a burglary in the house of A. in
one count, and a "distinct" burglary in the house of B. in
another, or a larceny of the goods of A. in one count, and
a " distinct " larceny of the goods of B. at a different time
in another, because such a course of proceeding is calcu-
lated to embarrass the prisoner in his defence. And where
it has been done, and an objection is taken to the indict-
ment on that ground before the prisoner has pleaded or the
jury are charged, the judge in his discretion may quash
718 PEOCEDURE ACT.
the indictment, or put the prosecutor to elect. But it is
no objection in arrest of judgment, or on a writ of error.
Thus, where an indictment charged the prisoner in three
several counts with three several felonies in sending three
separate threatening letters, Byles, J., compelled the pro-
secutor to elect upon which count he would proceed. — R.
y. Ward, 10 Cox, 42. And since different judgments are
required, it seems that the joinder of a count for a felony
with another for a misdemeanor, would be holden to be
bad upon demurrer, or after a general verdict, upon motion
in arrest of judgment. — 1 Starkie, Or. PI. 43. But now,
see sec. 143 of the Procedure Act, post.
So in R. v. Ferguson, Dears. 427, where the prisoner,
having been indicted for a felony and a misdemeanor in
two different counts of one indictment, and found guilty,
not generally, but of the felony only, the prisoner moved
in arrest of judgment, against the misjoinder of counts, the
judge reserved the decision, and Lord Campbell, C. J.,
delivering the judgment of the court of crown cases
reserved, said : •' There is really no difficulty in the world
in this case, and I must say that I regret that the learned
recorder, for whom I have a great respect, should have
thought it necessary to reserve it. The question is, whe-
ther the indictment was bad on account of an alleged mis-
joinder of counts. The prisoner was convicted on the count
for felony only, and it is the same thing as if he had been
convicted upon an indictment containing that single count;
and it is allowed that there was abundant evidence to war-
rant that conviction. There is not the smallest pretence
for the objection, that the indictment also contained a count
for misdemeanor, and it does not admit of any argument."
So in R. v. Holman, L. & C. 177, where the prisoner
was charged in an indictment by one count for embezzle-
PEOCEDUTIE ACT. 719
ment and the other for larceny as a bailee. At the close of
the case for the prosecution, it was objected that the
indictment was bad, for misjoinder of counts, and that the
objection was fatal, although not taken till after plea
pleaded and the j ury had been charged ; and, upon the
court proposing to direct the counsel for the prosecution to
elect on which count he would proceed, the prisoner's
counsel further contended that the indictment was so
absolutely bad that the election of counts was inadmissible.
The court directed the counsel for the prosecution to
elect on which count he would proceed reserving, at the
request of the prisoner's counsel, the points raised by him
as above stated for the consideration of the court for crown
cases reserved. The counsel for the prosecution elected to
proceed on the second count, and upon that count the
prisoner was convicted, and the conviction affirmed.
Where the defendant was indicted, in several counts,
for stabbing with intent to murder, with intent to maim
and disable, and with intent to do some grievous bodily
harm, it was holden that the prosecutor was not bound to
elect upon which count he would proceed, notwithstanding
the judgment is by the statute differeut, being on the first
count capital, and on the others transportation. — JR. v.
Strange, 8 C. & P. 172; Archbold, 70.
When the enactment contained in sec. 191 of our Pro-
cedure Act was in force in England, as 7 Will. IV and 1
Vic, c. 85, s. 11, a prisoner was charged in one indictment
with feloniously stabbing with intent — first, to murder;
second, to maim ; third, to disfigure ; fourth, to so some
grievous bodily harm ; to which was added a count for a
common assault. The case was far advanced before the
learned judge was aware of this, and at first he thought of
stopping it ; but as it was rather a serious one, he left the
720 PROCEDURE ACT.
case, without noticing the last count, to the jury, who
(properly as the learned judge thought upon the facts)
convicted the prisoner ; and the counsel for the prosecution
then, being aware of the objection of misjoinder, requested
that the verdict might be taken on the last count for felony,
which was done accordingly ; and this was held right by
all the judges. — R.r. Jones, 2 Moo. C. C. 94.
Here in Canada, now, there is no objection to a count
for a common assault, in an indictment for any of the
felonies, where, under sec. 191 of our Procedure Act,
the jury may find a verdict for the assault. But, of course,
such a count is not necessary, as the jury may, in that
case, convict of the misdemeanor, without its being alleged
in the indictment. See 1 Bishop's Cr. Proc. 446.
If in any case not falling under sec. 191 of the Proce-
dure Act, a count for a felony is joined with a count for a
misdemeanor, on motion to quash, or demurrer, it seems
that the indictment should be quashed or the prosecutor
ordered to proceed on one of the counts only. If the defen-
dant does not take the objection and allows the trial to
proceed, the conviction will be legal, if a verdict is taken
distinctly on one of the counts. If a verdict is given of
guilty generally, without specifying on which of the
counts, the conviction will be held bad on motion in arrest
of judgment, or in error, notwithstanding sec. 143 of the
Procedure Act, though this clause is much more extensive
than the corresponding English clause, 14-15 V., c. 100,
s. 25. For how could the court know what sentence to
give if it is not clear what offence the jury have found the
prisoner guilty of. See 1 Starkie, Cr. PI. 43 ; R. v. Jones,
2 Moo. C. C. 94 j R. v. Ferguson, Bears. 427.
Though in law, the right to charge different felonies in
one indictment cannot be denied, yet, in practice, the
PROCEDURE ACT. 721
court, in such a case, will always oblige the prosecutor to
elect and proceed on one of the charges only. — Dickinson's
quarter sessions, 190.
But the same offence may be charged in different ways,
in different counts of the same indictment, to meet the
several aspects which it is apprehended the case may
assume in evidence, or in which it may be seen in point of
law, and it is said in Archbold, p. 72 : (i Although a pros-
ecutor is not, in general, permitted to charge a defendant,
with different felonies in different counts, yet he may
charge the same felony in different ways in several counts
in order to meet the facts of the case ; as, for instance, if
there be a doubt whether the goods stolen, or the house in
which a burglary or larceny was committed, be the goods
or house of A. or B., they may be stated in one count as
the goods or house of A., and in another as the goods or
house of B. See R. v. Egginton, 2 B. & P. 508 ; R. v.
Austin, 7 C. & P. 796. And the verdict may be taken
generally on the whole indictment. — R. v. Downing, 1
Den. 52. But, inasmuch as the word ■ felony ' is not
collect ivum (as 'misdemeanor' is, see Ryalls v. R., 11 Q.
B. 781, 795), if the verdict and judgment, in such case,
be against the defendant for ' the felony aforesaid,' it will
be bad unless the verdict and judgment be warranted by
each count of the indictment." — Campbell v. R., 11 Q. B.
799, 814 ; see 1 Bishop's Or. Proc. 449.
Indictments for misdemeanors may contain several
counts for different offences, and, as it seems, though the
judgments upon each be different. — Young v. R., 3 T. R.
98, 105, 106; R. v. Toide, 2 Marsh, 466 ; R. v. Johnson,
3 M. & S. 539 ; R. v. Kingston, 8 East, 46 ; and see R.
v. Benfield, 2 Burr. 980 ; R. v. Jones, 2 Camp. 131 ;
Dickinson' 8 Q. S. 190 ; Starkie's Or, PL 43. Even where
WW
722 PROCEDURE ACT.
several different persons were charged in different counts,
with offences of the same nature, the court held that it
was no ground for a demurrer, though it might be for an
application to the discretion of the court to quash the in-
dictment.— R. v. Kingston, 8 East, 41. Where two
defendants were indicted for a conspiracy and a libel, and
at the close of the case for the prosecution, there was evi-
dence against both as to the conspiracy, but against one
only as to the libel, the judge then put the prosecutor to
elect which charge he would proceed upon. — R. v. Mur-
phy, 8 G. & P. 297. On an indictment for conspiracy to
defraud by making false lists of goods destroyed by fire,
one set of counts related to a fire in June, 1864, and
another to a fire in November, 1864. The prosecution
was compelled to elect which charge of conspiracy should
be first tried, and to confine the evidence wholly to that
in the first instance. — R. v. Barry, 4 F.& F. 389. And
on an indictment against the manager and secretary of a
joint-stock bank, containing many counts, some charging
that the defendants concurred in publishing false state-
ments of the affairs of the bank, and others that they con-
spired together to do so, the prosecutors were put to elect
on which set of counts they would rely. — R. v. Burch, 4
F. & F. 407. If, where there are several counts charging
different offences in law, the judgment be entered up
generally upon all, that the defendant ' for his said
offences ' be adjudged, etc., and it appears that any count
was bad in law, the judgment will be reversed in error. —
O'Gonnell v. R, 11 G. & F. 155. To prevent this it is
now usual, in cases of misdemeanor, to pronounce and enter
up the same judgment separately on each count of the
indictment." — Archbold, 72.
PROCEDURE ACT. 723
Where a prisoner is indicted for a felony, it is not
necessary to prefer a separate bill against him for an
attempt to commit it; and where he is indicted for a mis-
demeanor, it is not necessary to add another count for an
attempt to commit it ; because upon an indictment for the
felony or misdemeanor, if, upon the trial, it appear that
the defendant merely attempted to commit the offence,
but did not complete it, the jury may acquit him of the
offence charged, and find him guilty of the attempt. — Pro-
cedure Act, sec. 183.
So, upon an indictment for robbery, the prisoner may
now be found guilty of an assault with intent to rob. — S.
192 Procedure Act. So, upon an indictment for embezzle-
ment, if the offence upon the evidence appear to be a
larceny, the jury may acquit the prisoner of the embez-
zlement, and find him guilty of simple larceny, or of lar-
ceny as clerk or servant ; or upon an indictment for lar-
ceny, if upon the evidence the offence appears to be
embezzlement, the jury may acquit of the larceny and find
the party guilty of embezzlement. — S. 195 Procedure Act.
So, if upon an indictment for obtaining money or goods by
false pretences, the offence upon the evidence turn out to be
larceny, the defendant, notwithstanding, may be convicted
of the false pretences. — S. 196 Procedure Act. So, if
upon an indictment for larceny, the offence upon the evi-
dence turn out to be an obtaining by false pretences, the
jury may acquit of the larceny and find the defendant guilty
of obtaining by false pretences. — S. 198 Procedure Act.
So, upon an indictment for any misdemeanor, if the facts
given in evidence amount to a felony, the defendant shall
not on that account be acquitted of the misdemeanor,
unless the court think, fit to discharge the jury and order
724 PROCEDURE ACT.
the defendant to be indicted for the felony. — S. 184 Pro-
cedure Act. But this provision applies only where the
facts given in evidence prove the act charged in the in-
dictment ; " while they include such misdemeanor,'' says
the statute. And if a felony is proved, but no misde-
meanor, the provision does not apply.
The commencement of a second or subsequent count
is in form thus : " And the jurors aforesaid, upon their
oath aforesaid, do further present that," etc., proceed-
ing to state the offence. The absence of the words
" upon their oath aforesaid " would be a fatal and not
amendable defect, but as to the particular count only. —
See Archbold, 73.
Counts for different misdemeanors on which the judg-
ment is of the same nature may be joined in the same
indictment, and, on such counts judgment may, and indeed
ought to be, separately entered. — R. v. Orton, 14 Cox, 436
and 546 ; R. v. Bradlaugh 15 Cox, 217.
Counts for different misdemeanors of the same class may
be joined in the same indictment. — R. v. Abrahams, 24
L. C. J. 325.
Although, in general, it is not permitted to include two
different felonies under different counts of an indictment,
yet the same offence may be charged in different ways in
different counts of the same indictment. Thus, in the first
count, the accused may be charged with having stolen
wood belonging to A.? and in another with having stolen
wood belonging to B. — R. v. Falkner, 7 R. L. 544.
JOINDER OF DEFENDANTS — SEPARATE TRIALS.
Two parties accused of the same offence on the same
indictment are not entitled as of right to a separate defence
PROCEDURE ACT. 725
either in felonies or misdemeanors. — R. v. McConohy, 5
R. L. 746.
In R. v. Littlechild; L. R. 6 Q. B. 293, Held, that it
is in the discretion of the court to grant a separate trial or
not.
In R. v. Gravel (Montreal, Q. B. March, 1877,) for
subornation of perjury separate trials refused, Ramsay, J.
— In R. v. Bradlaugh, 15 Cox, 217, for libels, separate
trial granted. Where several persons are jointly indicted
the judge will not allow a separate trial on the ground
that the depositions disclose statements and confessions
made by one prisoner implicating another which are
calculated to prejudice the jury, and that there is no
legal evidence disclosed against the other prisoner. — R. v.
Blackburn, 6 Cox, 333.
The prosecution has always a right to a separate trial.
— 1 Bishop, Cr.Proc. 1034; 2 Hawkins, c. 41, par. 8.
See on the question 1 Chitty, C. L. 535; 1 Starkie, Cr.
PI, 36 ; 1 Bishop, Cr. Proc. 463, 1018 ; 1 Wharton, 433.
— R. v. Payne, 12 Cox, 118 ; O'ConnelL v. R., 11 C. cfc F.
115, and remarks under sec. 214, post.
For conspiracy and riot, there can be no severance of
trial— 1 Wharton, 434 ; Starkie' 's Cr. PI. 36, et seq.
106. Any number of the matters, acts or deeds by which any corn-
passings, imaginations, inventions, devices or intentions, or any of
them, have been expressed, uttered or declared, may be charged
against the offender, for any felony, under the " Act respecting Treason,
and other Offences against the Queen's authority." — 31 V., c. 69, s. 7. 11-
12 V., c. 12, *. 5, Imp.
The Act respecting Treason is c. 146, p. 30, ante.
107. In any indictment for perjury, or for unlawfully, illegally,
falsely, fraudulently, deceitfully, maliciously or corruptly taking,
making, signing or subscribing any oath, affirmation, declaration,
726 PKOCEDURE ACT.
affidavit, deposition, bill, answer, notice, certificate or other writing, it
shall be sufficient to set forth the substance of the offence charged
against the accused, and by what court or before whom the oath,
affirmation, declaration, affidavit, deposition, bill, answer, notice, cer-
tificate or other writing was taken, made, signed or subscribed, with-
out setting forth the bill, answer, information, indictment, declaration
or any part of any proceeding, either in law or equity, and without
setting forth the commission or authority of the court or person before
whom such offence was committed.— 32-33 V., c. 23, s. 9. 14-15 V.,
c. 100, s. 20, Imp.
See R. v. Dunning, 11 Cox, 651, and R. v. Hare, 13
Cox, 174.
108. In every indictment for subornation of perjury, or for corrupt
bargaining or contracting with any person to commit wilful and corrupt
perjury, or for inciting, causing or procuring any person unlawfully,
willully, falsely, fraudulently, deceitfully, maliciously or corruptly, to
take, make, sign or subscribe any oath, affirmation, declaration, affi-
davit, deposition, bill, answer, notice, certificate or other writing, it
shall be sufficient, whenever such perjury or other offence aforesaid
has been actually committed, to allege the offence of the person who
actually committed such perjury or other offence, in the manner
hereinbefore mentioned, and then to allege that the defendant unlaw-
fully, wilfully and corruptly did cause and procure the said person to
do and commit the said offence in manner and form aforesaid; and
whenever such perjury or other offence aforesaid has not actually been
committed, it shall be sufficient to set forth the substance of the
offence charged upon the defendant, without setting forth or averring
anv of the matters or things hereinbefore rendered un-iecessary to be
set forth or averred in the case of wilful and corrupt perjury. — 32-33
V., c. 23, *. 10. 14-15 V., c. 100, s. 21, Imp.
109. In any indictment for murder or manslaughter, or for being
an accessory to any murder or manslaughter, it shall not be necessary
to set forth the manner in which, or the means by which, the death
of the deceased was caused; but it shall be sufficient in any indict-
ment for murder to charge that the accused did feloniously, wilfully,
of his malice aforethought, kill and murder the deceased, — and it shall
be sufficient in any indictment for manslaughter to charge that the
accused did feloniously kill and slay the deceased ; and it shall be
sufficient in any indictment against any accessory to any murder or
PROCEDURE ACT. 727
manslaughter to charge the principal with the murder or manslaugh-
ter, as the case may be, in the manner hereinbefore specified, and then
to charge the accused as an accessory, in the manner heretofore used
and accustomed, or by law provided. — 32-33 V., e. 20, ». 6. 24-25 V.,
c. 100, *. 6, Imp.
110. In any indictment for stealing, or, for any fraudulent purpose,
destroying, cancelling, obliterating or concealing the whole or any
part of any document of title to land, it shall be sufficient to allege
such document to be or contain evidence of the title, or of part of the
title, or of some matter affecting the title, of the person or of some one
of the persons having an interest, whether vested or contingent, legal
or equitable, in the real property to which the same relates, and to
mention such real property or some part thereof. — 32-33 V., c. 21, *. 16,
part. 24-25 F., c. 96, *. 28, Imp.
111. Any number of distinct acts of embezzlement, or of fraudu-
lent application or disposition, not exceeding three, committed by the
offender, against Her Majesty, or against the same municipality,
master or employer, within the space of six months from the rir~t to
the last of such act", may be charged in any indictment, — and if the
offence relates to any money or any valuable security, it shall be suffi-
cient to allege the embezzlement or fraudulent application or dispo-
sition to be of money, without specifying any particular coin or
valuable security ; and such allegation, so far as regards the descrip-
tion of the property, shall be sustained if the offender is proved to
have embezzled or fraudulently applied or disposed of any amount,
although the particular species of coin or valuable security of which
such amount was composed is not proved, or if he is proved to have
embezzled or fraudulently applied or disposed of any piece of coin or
any valuable security, or any portion of the value thereof, although
such piece of coin or valuable security was delivered to him in order
that some part of the value thereof should be returned to the person
delivering the same, or to some other person, and such part has been
returned accordingly.— 32-33 V., c.21,*.73. 2-1-25 V., c. 96, s. 71, Imp.
See, ante, p. 383, under sec. 52 of the Larceny Act, to
which this clause applies.
112. In any indictment for obtaining or attempting to obtain any
property by false pretences it shall be sufficient to allege that the
person accused did the act with intent to defraud, and without
728 PROCEDURE ACT.
alleging an intent to defraud any particular person, and without
alleging any ownership of the chattel, money or valuable security;
and on the trial of any such indictment, it shall not be necessary to
prove an intent to defraud any particular person, but it shall be
sufficient to prove that the person accused did the act charged with
an intent to defraud— 32-33 V., c. 21, s. W,part. 24-25 V., c. 96, s. 88,
Imp.
Sill v. It., Dears. 132, is not now law since this enact-
ment.
See sec. 77, of c. 164, p. 420, ante, as to the offence of
obtaining tinder false pretences. See Greaves' note under
sec. 114, post.
113. It shall not be necessary to allege, in any indictment against
any person for wrongfully and wilfully pretending or alleging that he
inclosed and sent, or caused to be inclosed and sent, in any post
letter, any money, valuable security or chattel, or to prove on the
trial, that the act was done with intent to defraud. — 32-33 V,, c. 21, s.
96, part.
This clause is not in the Imperial Acts. It has refer-
ence to sec. 79, p. 440, ante, of the Larceny Act.
114. In any indictment for forging, altering, uttering, offering,
disponing of or putting off any instrument whatsoever, where it is
necessary to allege an intent to defraud, it shall be sufficient to allege
that the person accused did the act with intent to defraud, without
alleging an intent to defraud any particular person ; and on the trial
of any such offence it shall not be necessary to prove an intent to
defraud any particular person, but it shall be sufficient to prove that
the person accused did the act charged with an intent to defraud. —
32-33 V., c. 19, s. 51. 24-25 V., c. 98, s. 44, Imp.
See, ante, c. 165, general remarks on forgery.
The words " where it is necessary to allege an intent
to defraud " were inserted to prevent its being supposed
that this clause made it necessary to allege an intent to
defraud in cases where the clause creating the offence did
not make such an intent an ingredient in the offence. —
Greaves' note.
PROCEDURE ACT. 729
This section, and section 112, ante, apply to two matters
the statement of the intent to defraud in indictments for
forgery and false pretences, and the evidence in support of
such intent.
Before this act passed, it was necessary in these cases to
allege that the defendant did the act charged with intent to
defraud some particular individual mentioned in the indict-
ment, and to prove that in fact the defendant did such act
with intent to defraud the person so specified. This in most
instances led to the multiplication of counts, alleging an
intent to defraud different persons, so as to meet any view
that the jury might take of the evidence, and sometimes*
upon the evidence, a difficulty occurred in ascertaining whe-
ther any person in particular ctuld be said to be intended to
be defrauded. (See R. v. Marcus, 2 C & K. 356 ; R. v.
Tuffs, 1 D. C. C. 319). This clause is intended to obviate
all such difficulties, and it renders it sufficient to allege in the
indictment, that the forgery or uttering was committed, or
the goods obtained, with intent to defraud, without specify"
ing any particular person intended to be defrauded ; and it
likewise renders it unnecessary to prove that the defendant
ntended to defraud any particular person, qnd makes it suffi-
cient to prove that he did the act with intent to defraud. —
Greaves' note.
115. la any indictment against any person for buying, selling,
receiving, paying or putting off, or offering to buy, sell, receive, pay
or put off, without lawful authority or excuse, any false or counterfeit
coin, resembling or apparently intended to resemble or pass for any
current gold or silver coin, at or for a lower rate or value than the
same imports or was apparently intended to import, it shall be suffi-
cient to allege that the person accused did buy, sell, receive, pay or
put off, or did offer to buy, sell, receive, pay or put off the false or
counterfeit coin, at or for a lower rate of value than the same
imports, or was apparently intended to import, without alleging at or
730 PROCEDUKE ACT.
for what rate, price or value the same was bought, sold, received,
paid or put off, or offered to be bought, sold, received, paid or put
off.— 32-33 V., e. 18, s. 6,part. 24-25 V., c. 99, s. 6, Imp.
See 1 Russ. 135.
" Under the former enactment it was necessary to allege
in the indictment, and prove by evidence, the sum for
which the coin was bought, etc. ; R. v. Joyce, Garr. Supp.
184; R. v. Hedges, 3 C. & P. 410; the last part of this
clause renders it unnecessary to allege the sum for which
the coin was bought, etc., and consequently whatever the
evidence on that point may be, there can be no variance
between it and the allegation in the indictment, and all
that need be proved is that the coin was bought, etc.,
at some lower rate or value than it imports. — Greaves'
note.
116. It shall be sufficient in any indictment for any offence against
the "Act respecting Malicious Injuries to Property," where it is neces-
sary to allege an intent to injure or defraud, to allege that the person
accused did the act with intent to injure or defraud, as the case may
be, without alleging an intent to injure or defraud any particular per-
son, and on the trial of any such offence it shall not be necessary to
prove an intent to injure or defraud any particular person, but it shall
be sufficient to prove that the person accused did the act charged
with an intent to injure or defraud as the case may be. — 32-33 V., c
22, s. 68. 24-25 V., c. 97, s. 60, Imp.
This clause places the law on these points in the same
position as in cases of forgery and false pretences. Sees.
112 and 114, ante.
117. In any indictment for any offence committed in or upon or
with respect to, —
(a.) Any church, chapel, or place of religious worship, or anything
made of metal fixed in any square or street, or in any place dedi-
cated to public use or ornament, or in any burial-ground, —
(6.) Any highway, bridge, court-house, gaol, house of correction,
penitentiary, infirmary, asylum, or other public building,—
PROCEDURE ACT. 731
(c.) Any railway, canal, lock, dam, or other public work, erected
or maintained in whole or in part at the expense of Canada, or of any
of the Provinces of Canada, or of any municipality, county, parish or
township, or other sub-division thereof, —
id.) Any materials, goods or chattels belonging to or provided for,
or at the expense of Canada, or of any such Province, or of any
municipality or other sub division thereof, to be used for making,
altering or repairing any highway or bridge, or any court house or
other such building, railway, canal, lock, dam or other public work
as aforesaid, or to be used in or with any such work, or for any other
purpose whatsoever, —
(<?.) The whole or any part of any record, writ, return, affirmation,
recognizance, cognovit actionem, bill, petition, answer, decree, panel,
process, interrogatory, deposition, affidavit, rule, order or warrant of
attorney, or of any original document whatsoever, of or belonging to
any court of justice, or relating to any cause or matter, begun, depend-
ing or terminated in any such court, or of any original document in
any wise relating to the business of any office or employment under
Her Majesty, and being or remaining in any office appertaining to any
court of justice, or in any Government or public office, —
if) The whole or any part of any will, codicil or other testamen-
tary instrument, or —
ig.) Any writ of election, return to a writ of election, indenture,
poll-book, voters' list, certificate, affidavit, report, dooument or paper,
made, prepared or drawn out according to any law respecting provin-
cial, municipal or civic election-. —
It shall not be necessary to allege that any such property instru-
ment or article is the property of any person. — 32-33 V., c. 21, ss. 17,
part, IS, part, 20, part, and c. 29, s. 19. 29-30 V. {Can), c. 51, s.
188, part. 24-25 V., c. 96, ss. 29, 30, 31, Imp.
118. If in any indictment for any offence, it is requisite to state
the ownership of any property, real or personal, which belongs to or
is in possession of more than one person, whether such persons are
partners in trade, joint tenants, parceners, or tenants in common, it
shall be sufficient to name one of such persons, and to state the pro-
perty to belong to the person so named, and another or others, as the
case may be. — 32-33 V., c. 29, s. 17.
119. If, in any indictment for any offence, it is necessary for any
732 PROCEDURE ACT.
purpose to mention any partners, joint tenants, parceners or tenants
in common, it shall be sufficient to describe them in the manner
aforesaid; and this provision and that of the next preceding section
shall extend to all joint stock companies and trustees. — 32-33 V., c.
29,5.18.
These two clauses are taken from the Imperial Act,
7 Geo. IV., c. 64, s. 14. Formerly, where goods stolen
were the property of partners, or joint-owners, all the
partners or joint-owners must have been correctly named
in the indictment, otherwise the defendant would have
been acquitted.
The word " Parceners " refers to a tenancy which
arises when an inheritable estate descends from the
ancestor to several persons possessing an equal title to it.
— Wharton, Law Lexicon.
It must be remembered that the words of the statute,
in sec. 118, are, "another or others;" and if an indict-
ment allege property to belong to A. B. and others,
and it appears that A. B. has only one partner, it is a
variance.
The prisoner was indicted for stealing the property of
G. Eyre " and others," and it was proved that G. Eyre
had only one partner; it was held, per Denman, Com.
Serj., that the prisoner must be acquitted. — Hampton's
Case, 2 Russ. 303. So where a count for forgery laid the
intent to be to defraud S. Jones " and others," and it
appeared that Jones had only one partner, it was held
that the count was not supported. — R. v. Wright, 1
Lewin, 268.
In R. v. Kealey, 2 Den. 68, the defendant was in-
dicted for the common law misdemeanor of having
attempted, by false pretences made to J. Baggally and
others, to obtain from the said J. Baggally and others
PROCEDURE ACT. 733
one thousand yards of silk, the property of the said J.
Baggally and others, with intent to cheat the *aid J.
Baggally and others of the same. J. BaggaUy and
others were partners in trade, and the pretences were
made to J. Baggally; but none of the partners were
present when the pretences were made, nor did the
pretences ever reach the ear of any of them. It was
objected that there was a variance, as the evidence did
not show that the pretences where made to J. Baggally
and others; but the objection was overruled by Eussell
Guerney, Esq., Q. C, and, uppn a case reserved, the con-
viction was held right.
Greaves, in note a, 2 Muss. 304, says on this case :
" It is clear that the 7 Geo. IV., c. 64, s. 14 (sees.
118 and 119, ante, of the Procedure Act) alone authorizes
the use of the words ' and others ; ' for, except for that
clause, the persons must have been named. There the
question really was, whether that clause authorized the
use of it in this allegation. The words are, ' whenever it
shall be necessary to mention, for any purpose whatsoever,
any partners, etc' (' if it be necessary for any purpose to
mention,' etc., sec. 119, ante.) Now it is plain that the
prisoner had applied to Baggally to purchase the goods of
the firm, and the inference from the statement in the
indictment is that he had actually made a contract for
their purchase, and, if that contract had been alleged, it
must have been alleged as a contract with the firm, and it
was clearly correct to allege an attempt to make a contract
as made to the firm also."
Now, such a variance, as mentioned in Hampton's
and Wrights cases, ubi supra, would not be fatal, if
amended. — 3 Burn, 25; see sec. 238 post; and E. v.
734 PROCEDURE ACT.
Pritchard, L. & G. 34 ; R. v. Vincent, 2 Den. 464 ; R. v.
Marks, 10 Cox, 367.
It is not necessary that a strict legal partnership
should exist. Where C. and D. carried on business in
partnership, and the widow of C, upon his death,
without taking out administration, acted as partner, and
the stock was afterwards divided between her and the
surviving partner, but, before the division, part of the
stock was stolen; it was holden that the goods were
properly described as the goods of D. and the widow. —
R. v. Gaby, R. & R. 178.
And where a father and son carried on business as
farmers; the son died intestate, after which the father
continued the business for the joint benefit of himself
and the sons next of kin ; some sheep were stolen, and
were laid to be the property of the father and the sons
next of kin, and all the judges held it right. — R. v. Scott,
R. & R. 13.
In an indictment for stealing a Bible, a hymn-book,
etc., from a Methodist chapel, the goods were laid as the
property of John Bennett and others, and it appeared
that Bennett was one of the Society, and a trustee of the
chapel : Parke, J., held that the property was correctly
laid in Bennett. — R. v. Boulton, 5 C. & P. 537.
In R. v. Pritchard, L. & G. 34, it was held that the
property of a banking co-partnership may be described as
the property of one of the partners specially named and
others, under the clause in question; but see now sec. 122
of the Procedure Act, post, as to bodies corporate, and the
property under their control. — R. v. Beacall, 1 Moo. G. G.
15.
120. In any indictment for any offence committed on or with res-
PROCEDURE ACT. 735
pect to any house, building, gate, machine, lamp, board, stone, post,
fence or other thing erected or provided by any trustees or commissi-
oners, in pursuance of any act in force in Canada, or in any Province
tbereof, for making any turnpike road, or to any conveniences or
appurtenances tbereunto respectively belonging, or to any materials,
tools or implements provided for making, altering or repairing any
such road, it shall be sufficient to state any such property to belong
to the trustees or commissioners of such road, without specifying the
names of such trustees or commissioners. — 32-33 V., c. 29, s. 20.
7 Geo- 4,c. 64, s. 17, Imp.
121. In any indictment for any offence committed on or with res-
pect to any buildings, or any goods or chattels, or any other property,
real or personal, in the occupation or under the superintendence
charge or management of auy public officer or commissioner, or any,
county, parish, township or municipal officer or commissioner, it
shall be sufficient to state any such property to beiong to the officer or
commissioner in whose occupation or under whose superintendence,
charge or management such property is, and it shall not be necessary
to specify the names of any such officer or commissioner. — 32-33 V.,
c. 29, s- 21. 7 Geo. 4, c. 64, s. 16, Imp.
It has been held that if a person employed by a trustee of
turnpike tolls to collect them, lives in the toll house rent
free, the property in the house, in an indictment for bur-
glary, may be laid in the person so employed by the lessee,
he having the exclusive possession, and the toll house not
being parcel of any premises occupied by his employer. —
R. v. Camfield, 1 Moo. C. C. 4_\
122. All property, real and personal, whereof any body corporate
has, by law, the management, control or custody, shall, fur the pur-
pose of any indictment or proceeding against any other person for any
offence committed on or in respect thereof, be deemed to be the pro-
perty of such body corporate.— 32-33 V., c. 29, s. 22.
This clause is not in the Euglish statutes. It is only
declaratory of the common law, and it was held in England
without this clause, that when goods of a corporation are
stolen, they must be laid to be the property of the corpo-
736 PROCEDURE ACT.
ration in their corporate name and not in the names of the
individuals who comprise it. — R. v. Patrick and Pepper,
1 Leach. 253. So in R. v. Freeman, 2 Russ. 301, the pris-
oner was indicted for stealing a parcel, the property of the
London and North Western Railway Company. The
parcel was stolen from the Lichfield Station, which had
been in the possession of the company for three or four
years, by means of their servants ; but no statute was pro-
duced which authorized the company to purchase the Trent
Valley Line; an Act incorporating the company was,
however, produced. It was held that, as a corporation is
liable in trover, trespass and ejectment, they might have
an actual possession, though it might be wrongful, which
would support the indictment.
In R. v. Frankland, L. & G. 276, it was held : 1st.
That the incorporation of a private company must be
proved by legal and documentary evidence ; 2nd. That
partners in a company not incorporated, might be proved
to be such by parol evidence ; 3rd. That Thomas Bolland
and others, who were described in the indictment as the
owners of the property embezzled, being partners in a
company not incorporated, the indictment was supported
by proof that the money was the property of the company.
123. In any indictment against any person for stealing any oysters
or oyster brood from any oyster bed, laying or fishery, it shall be suf-
ficient to describe, either by name or otherwise, the bed, laying or
fishery in respect of which any of the said offences has been commit-
ted, without stating the same to be in any particular county, district
or local division.— 32-33 V., c. 21, s. 14, part. 24-25 V., c. 96, s. 26,
Imp.
See sec. 11 of The Larceny Act, p. 294, ante.
124. In any indictment for any offence mentioned in sections
twenty-five to twenty-nine, both inclusive, of " The Larceny Act"
PROCEDURE ACT. 737
ehall be sufficient to lav the property in Her Majesty, or in any per-
son or corporation, in different counts in such indictment ; and any
variance in the latter case, between the statement in the indictment and
the evidence adduced, may be amended at the trial ; and if no owner
is proved the indictment may be amended by laying the property in
H<>r Majesty.— 32-33 F., e. 21, s. 36.
These sections of the Larceny Act, p. 312 et seq., ante,
apply to the stealing of ores and minerals, and the unlaw-
fully selling or buying gold and silver from mines.
125. In any indictment for any offence committed in respect of any
postal card, postage stamp or other stamp issued or prepared for issue
by the authority of the Parliament of Canada, of the Legislature of
any Province of Canada, for the payment of any fee, rate or duty
whatsoever, the property therein may be laid in the person in whose
possession, as the owner thereof, it was when the larceny or offence
was committed, or in Her Majesty, if it was then unissued, or in the
possession of any officer or agent of the Government of Canada or of
the Province, by authority of the Legislature whereof it was issued or
prepared for issue. — 35 V., e. 33, s. l,part.
Sec. 2 of the Larceny Act, p. 278, ante, declares these
stamps to be chattels, and included in the word pro-
perty.
126. In every case of larceny, embezzlement or frandulent appli-
cation or disposition of any chattel, money or valuable security,
under sections fifty-three, fifty-four and fifty-five of " The Larceny
Act," the property in any such chattel, money or valuable security
may. in the warrant of commitment by the justice of the peace before
whom the offender is charged, and in the indictment preferred against
such offender, be laid in Her Majesty, or in the municipality, as the
case may be.— 32-33 F., e. 21, s. 72, part. 24-25 F, c. 96, s. 70, Imp.
See, ante, p. 401, under these clauses of the Larceny
Act.
127. An indictment in the common form for larceny may be pre-
ferred against any person who steals any chattel let to be used by him
in or with any house or lo Iging, — and in every case of stealing any
fixture so let to be used, an indictment in the same form as if the
XX
738 PROCEDURE ACT.
offender was not a tenant or lodger may be preferred, — and in either
case the property may be laid in the owner or person letting to hire.
32 33 V., c. 21, s. 75, part. 24-25 V., c 96, «. 94, Imp.
See, ante, p. 404 under sec. 57 of the Larceny Act.
128. No indictment shall be held insufficient for want of the aver-
ment of any matter unnecessary to be proved, nor for the omission of
the words " as appears upon the record" or "as appears by the
record," or of the words "with force and arms," or of the words "against
the peace," — or for the insertion of the words " against the form of the
statute " instead of the words " against the form of the statutes," or
vice versa, or for the omission of such words, — or J or the want of an
addition or for an imperfect addition of any person mentioned in the
indictment, or because any person mentioned in the indictment is desig-
nated by a name of office or other descriptive appellation instead of
his proper name, — or for omitting to state the time at which the offence
was committed in any case in which time is not of the essence of the
offence, or for stating the time imperfectly, or for stating the offence
to have been committed on a day subsequent to the finding of the
indictment, or on an impossible day, or on a day that never happened,
— or for want of a proper or perfect venue, or for want of a proper or
formal conclusion, or for want of or imperfection in the addition of
any defendant, — or for want of the statement of the value or price of
any matter or thing, or the amount of damage, injury or spoil, in any
ca6e in which the value or price or amount ot damage, injury or spoil
is not of the essence of the offence. — 32-33 V., c. 29, s. 23.
The words •"' against the form of the statute " are not
necessary in any indictment. — Castro v. R.} 14 Cox, 546.
This clause is taken from the Imperial Act, 14-15 V.,
c. 100, s. 24. The words initalics arc not in the Imperial
Act.
By this enactment no objection can be taken against an
indictment in the following cases :
1. The want of the averment of any matter unnecessary
to be proved.
2. The omission of the words "as appears upon the
record."
PROCEDUEE ACT. 739
3. The omission of the words " as appears by the record."
4. The omission of the words " with force and arms."
5. The omission of the words " against the peace.''
6. The insertion of the words " against the form of the
statute" instead of "against the form of the statutes,"
and vice versa.
7. The omission of such words.
8. Want of, or imperfection in the addition of any
person mentioned in the indictment.
9. That any person is designated by a name of office, or
other descriptive appellation instead of his proper name.
10. Omitting to state the time at which any offence was
committed in any case where time is not of the essence of
the offence.
11. Stating the time imperfectly.
12. Stating the offence to have been committed on a day
subsequent to the finding of the indictment, or on an
impossible day, or on a day that never happened.
13. "Want of a proper or perfect venue.
14. Want of a proper or formal conclusion.
15. Want of, or imperfection in the addition of any
defendant.
16. Want of the statement of the value or price of
any matter or thing, or the amount of damage, injury or
spoil, in any case where the value or price, or the
amount of damage, injury or spoil is not of the essence of
the offence.
On the first, second and third cases, no remarks are
called for.
On the fourth, rendering unnecessary in any indictment
the words " with force and arms," Chitty said, on these
words, before this clause : " The words ' with force and
740 PROCEDURE ACT.
arms,' anciently vi et armis, were, by the common law,
necessary in indictment for offences which amount to an
actual disturbance of the peace, or consist, in any way, of
acts of violence ; but it seems to be the better opinion that
they were never necessary where the offence consisted of
a cheat or non-feasance, or a mere consequential injury
But the statute 37 Hen. VIII, c. 8, reciting that
several indictments had been deemed void for want of
these words, when in fact no such weapon had been
employed, enacted that, 'that the words vi et armis,
videlicit, cum baculis, cultellis, arcubus et sagittis,' shall
not of necessity be put in any indictment or inquisition.
Upon the construction of this statute, there seems to have
been entertained very grave doubts whether the whole of
the terms were intended to be abolished in all indictments,
or whether the words following the videlicet were alone
excluded. Many indictments for trespass, and other
wrongs, accompanied with violence, have been deemed
insufficient for want of the words ' with force and arms ; '
and, on the other hand, the court has frequently refused to
quash the proceedings where they have been omitted, and
the last seems the better opinion, for otherwise the terms
of the statute appear to be destitute of meaning. It seems,
to be generally agreed, that, where there are any other
words imploying force, as, in an indictment for a rescue,
the word ' rescued,' the omission of vi et armis is suffi-
ciently supplied. But it is at all times safe and proper to
insert them, whenever the offence is attended with an
actual or constructive force, or affects the interest of the
public."
The words " with force and arms," though not absolutely
an essential allegation of the indictment, would, in certain
PROCEDURE ACT. 741
cases, not be easily replaced, as in indictments for forcible
entry or forcible detainer. This clause would not apply,
if a statute created an offence in the following words :
" Whosoever, with force and arms, destroys, etc. Then the
words vi et armis would be a necessary ingredient of the
offence, and should be found in an indictment under such a
clause.
As to the words " against the peace," at common law,
they were necessary, where the offence charged was not
one created by statute, and contra pacem Domini Regis
were the words required; and this in the conclusion of
each of the counts; contra pacem alone was insufficient,
though contra coronam et dignitatem ejus was not neces-
sary.— 2 Hale, 188. So, formerly, great care was necessary
in ascertaining whether the expression " against the form of
the statute " or " against the form of the statutes " should
be used ; but one or the other was necessary when the
indictment charged a statutory crime. In England, though
a contrary opinion is given in Archhold, p. 67, it seems,
according to Broom's Comm. p. 991, that, even now, the
conclusion of the indictment must be contra formatn
statuti, where the offence charged is founded upon the
statute law, as the 14-15 V., c. 100, s. 29, does not
dispense with the conclusion; but whatever doubts may
arise there are in Canada removed by the enactment
stated as the seventh, ante, of our corresponding clause, as
to the omission of these words.
It will be seen that another enactment in the Canadian
clause, not to be found in the English act, is the eighth,
ante, declaring immaterial the want of addition or imper-
fect addition of any person mentioned in the indictment.
This covers all persons who are nanied as owners of the
742 PKOCEDURE ACT.
property, regarding which the offence has been committed,
and appears to be the rule even without this clause. — 3
Bum, 23.
What is meant by the word " addition ? " Addition is
the title, or mystery (art, trade or occupation), and place of
abode of a person besides his names. — Wharton, Laiu
Lexicon, verbo addition.
By the ninth enactment of the clause in question, it is
declared that no indictment shall be insufficient " for that
any person mentioned in it is designated by a name of
office or other descriptive appellation instead of his proper
name."
This part of the clause applies only to the names of the
prosecutor or of the party injured, or of any third parties
mentioned in the indictment ; it does not extend to the
names of the defendant. Under it, an indictment alleging
the goods stolen to be the property of the u Duke of Cam-
bridge " without giving him any other names, would be
held sufficient. R. v. Frost, Dears. 474. But it must be
remembered that, if at the trial, it appear in evidence that
the party injured is misnamed, or that the owner of the
goods or house, etc., is another and different person from
him named as such in the indictment, the variance, unless
amended, is fatal, and the defendant must be acquitted. — 2
East, P. C. 651, 781 ; Archbold, 46. But, now, under
sec. 238 of the Procedure Act, see, post, such an amend-
ment, asked for before verdict, would hardly ever be
refused.
The enactments tenthly, eleventhly, and twelfthly, con-
tained in the above sec. 128, refer to omitting in any
indictment to state the time at which the offence was com-
mitted, in any case where time is not of the essence of the
PROCEDURE ACT. 743
offence, or to stating the time imperfectly, or to stating
the offence to have been committed on a day subsequent
to the finding of the indictment, or on an impossible day,
or on a day that never happened, the clause enacting in
the same terms as the English act, that no objection to any
indictment on these grounds will be available to the defen-
dant.
At common law, where the date was not a necessary
ingredient of the offence, a variance between the indict-
ment and evidence in the time, when the offence was
committed, was never considered material, and in Sir
Henry Vane's Case, for high-treason, the jury, under in-
structions of the court, found the prisoner guilty, though the
offence was proved to have been committed ten years
anterior to the time laid in the indictment. — Kelyng's C. C.
19 ; Stevens & Haynes reprint. And the doctrine that the
time laid in the indictment is not material, when not
essential to the offence, was confirmed by all the judges
in Lord Balmerino's Case; note in Tou-nley's Case,
Fast. 9.
So, Lord Hale, says : " But though the day or year be
mistaken in the indictment of felony or treason, yet if the
offence be committed in the same county at another time,
the offender ought to be found guilty." — 2 Hale, 179.
But it was, nevertheless, necessary, though only a formal
averment, except in particular cases, to state in the indict-
ment the time at which the offence charged had been
committed, that is to say the year and day, and any
uncertainty or incongruity in the description of time
was fatal to the indictment. — 1 Starkie, Cr. PI. 54, 60.
The rule required a day to be specified, but did not require
that day to be proved. Lord Campbell, Lives of the Chief
744 PROCEDUKE ACT.
Justices, vol. 3, calls this a mystery of the English Pro-
cedure.
But, now, by the above enactment , time need not even
be averred, and, if averred, it is no objection that the date
stated is an impossible or an incongruous one. The aver-
ment is a surplusage, except when time is of the essence
of the offence, as, for instance, in an indictment for a sub-
sequent offence.
"Averments of time in criminal proceedings, says Tay-
lor, Ev., 229, are now even of less importance than those
of place ; for excepting in the. very few cases where time
is of the essence of the offence, the indictment need not
contain any allegation respecting it. Indeed, independent
of the new law, the date specified in the indictment has
been so far disregarded that, where a court had no juris-
diction to try a criminal, except for an offence committed
after a certain day, the judges held that no objection could
be taken to the indictment in arrest of judgment, for alleg-
ing that the act was done before that day, the jury having
expressly found that this was not correct. — R. v. Tre-
harne, 1 Moo. C. G. 298."
It is said in Archbold, page 50 : " There are, however,
some exceptions to this rule : 1. The dates of bills of ex-
change, and other instruments must be truly stated, when
necessarily set out ; 2. Deeds must be pleaded either accord-
ing to the date they bear, or to the day on which they were
delivered ; 3. If any time stated in the indictment is to be
proved by matter of record, it must be truly stated ; 4. If
the precise date of a fact be a necessary ingredient in the
offence, it must be truly stated."
See, post, sec. 237, as to amendment of variances between
the proof and the indictment, in documents in writing.
PKOCEDUEE ACT. 745
The want of a proper or perfect venue is the omission
thirteenthly provided for by the above clause, as not affect-
ing the validity of the indictment.
It seems that an entire omission of venue is not pro-
vided for by this clause, and that such an omission might
still be taken advantage of; but no venue need now be
stated in the body of the indictment, except where local
description is required, but the name of the district, coun-
ty, or place in the margin shall be taken to be the venue ;
sec. 104, ante. But an entire omission of venue in the cases
where it is yet necessary, though it may be taken advan-
tage of under sec. 143 of the Procedure Act, by way of
demurrer or motion to quash the indictment, could pro-
bably be rectified by amendment under that section ; and,
if not taken advantage of by demurrer or motion to quash,
the omission could not be taken advantage of by motion
in arrest of judgment. See 3 Burn, 22.
The above clause declares, as its fourteenth enactment
that no indictment shall be held ins ufiScient for want of
a proper or formal conclusion.
These words " were introduced to render any conclusion,
perfectly unnecessary and immaterial." — 2 Muss. 326, note
W. by Greaves.
So that the words " to the great damage of the said
," "to the evil example of all others," " to the great
displeasure of Almighty God," etc., probably never neces-
sary, are now not to be used. And an indictment for a
public nuisance need not now conclude, " ad commune
nocumentum." — _R- v. Holmes, Dears. 207.
And before these statutes, it was held that the conclu-
sion " against the form of the statute " in an indictment
for a common law offence, instead of " against the peace,"
did not invalidate the indictment; the conclusion may
746 PROCEDUKE ACT.
then be treated as a surplusage. — B. v. Mathews, 2
Leach, 585.
The want of or imperfection in the addition of any
defendant is the next defect declared immaterial by the
above clause, or rather declared to be no defect at all.
See, ante, what has been said under the enactment in
this same clause, concerning the want of addition or imper-
fect addition of any person mentioned in the indictment.
Sec. 142, post, enacts, inter alia, that no indictment
shall be abated by reason of any want of addition of any
party offering such plea.
Before these enactments, the 1 Hen. V., c. 5, required,
in indictments, to be given to defendants the additions of
u their estate, or degree, or mystery," and also the " towns,
or hamlets, or places, and counties of which they were or
be, or in which they be or were conversant."
Lastly, this clause enacts that no indictment shall be
held insufficient for want of the statement of the value or
price of any matter or thing, or the amount of damage
injury or spoil in any case where the value or price, or the
amount of damage, injury or spoil, is not of the essence of
the offence.
The rule is, that if a statute makes, for instance, the
stealing of a particular thing a felony, without reference to
its value, then the value need not be alleged in the indict-
ment. But wherever the value is an element to be con-
sidered by the court in determining the punishment, it
must be alleged in the indictment and duly proved on the
trial. — 1 Bishop, Gr. Proc. 541. So suppose an indictment
charges the defendant with the larceny of a diamond ring,
without alleging the value of the ring, the defendant can-
not be sentenced to more than seven years in the peniten-
tiary, under sec. 5 of the Larceny Act, though, at the trial,
PROCEDURE ACT. 747
the ring was proved to be worth one thousand pounds ; and
the court cannot sentence him to the gTeater punishment
allowed by sec 86 of the said Larceny Act, because the
value was not alleged in the indictment.
The value is of the essence of the offence, where, by the
statute, it is said, for instance : " Whosoever steals in any
dwelling-house any chattel, etc., to the value in the whole
of twenty-five dollars or more : " sec. 45 of the Larceny
Act. To bring an indictment under this section, the value
of twenty-five dollars or more must necessarily be alleged
in the indictment and proved. But suppose it is alleged
to be of fifty dollars, and proved to be only of thirty, this
will be sufficient, because the value proved constitutes the
offence created by statute.
If there are more than one article mentioned in the indict-
ment, it is better to state and prove the value of each, so
as to form, in the whole, the amount necessary to bring
the case under the statute. — R. v. Forsyth, R. <£ R. 274 ;
1 Taylor, Ev. _par. 230. However, in R. v. ThoTnan, 12
Cox, 54, it has been held by the court of criminal appeal
that in an indictment, under 24-25 V., c. 97, s. 51, Imp.
(sec. 58, c. 168 of Canadian Acts,) for maliciously damag-
ing personal property, the damage exceeding five pounds,
it is not necessary to allege the value of each article in-
jured, or the value of the damage done to each article, but
only that the amount of damage done to the several articles
exceeded five pounds in the aggregate.
129. Whenever, in any indictment, it is necessary to make an
averment as to any money or to any note of any bank, or Dominion
or Provincial note, it shall be sufficient to describe such money or
note simply as money, without any allegation, so far as regards the
description of the property, specifying any particular coin or note;
and such averment shall be sustained by proof of any amount of coin
or of any such note, although the particular species of coin of which
748 PROCEDURE ACT,
such amount was composed or the particular nature of the note is
not proved.— 32-33 V., c 29, s. 25.
130. Whenever it is necessary to make an averment in an indict-
ment, as to any instrument, whether the same consists wholly or in
part of writing, print or figures, it shall be sufficient to describe such
instrument by any name or designation by which the same is usually
known, or by the purport thereof, without setting out any copy or
fac simile of the whole or of any part thereof.— 32-33 V., c 29, s. 24.
The 130th sec. is taken from the 14-15 V., c. 100, s.
7, of the Imperial Statutes upon which Greaves remarks :
" This section renders it sufficient to describe any instru-
ment to which it applies by any name or designation
by which it is usually known, or by its purport. It
is to be observed also that this section applies not merely
to instruments in respect of which any offence is alleged
to have been committed, but to every instrument as to
which any averment may be made in any indictment.
— Lord Campbell's Acts, by Greaves, 12.
The 129th sec. is taken from the 14-15 V., c. 100, s.
18, of the Imperial Statutes, upon which Greaves says
"This section was framed upon the 7-8 Geo. IV., c. 29, s.
48, and was intended to meet the case of R. v. Bond, 1
Den. 517. It originally applied to money and valuable
securities, the same as the section from which it was taken ;
but it was thought better that it should only extend to
coin and the notes of the Band of England and other banks.
In these cases it is sufficient in any indictment whatever,
where it is necessary to make any averment as to any coin
or bank note, to describe such coin or note simply as
money, without specifying any particular coin or note ;
and such an allegation will be supported by proof of any
amount, although the species of coin or the nature of the
note be not proved."
As to sec. 130 it is only necessary to remark that, at
PROCEDURE ACT. 749
common law, -written instruments, wherever they formed
a part of the gist of the offence charged must have been
set out verbatim. — Archbold, 55. But even, before this
statute, it was held that if the defendant is charged with
fraudulently offering a spurious bank note, and obtaining
goods by the false pretence that it is a good bank note it
is not necessary to set out the bank note, because it is not
in this case material for the court to see that the instru-
ment falls within a particular description. — B. v. Couteon,
1 Den. 592.
As to sec. 129, it is said in Archbold, 59, that before
this enactment, money was described in an indictment
as so many "pieces of the current gold,'' or "silver," or
" copper coin of the realm, called ," and the particular
species of coin must have been specified ; so, though Lord
Hale, 1 P. C. 534, and Starkie, 1 Cr. PI. 187, seem to be of
a contrary opinion, an indictment charging the stealing of
ten pounds in moneys numbered was held bad. — B. v. Jry,
B. & B., 482. And in Bond's case, cited, supra, by G reaves,
it was held that an indictment charging a stealing of
seventy pieces of the current coin of the realm called sove-
reigns, of the value of seventy pounds, 140 pieces, etc.,
called half-sovereigns, etc., 500 pieces, etc., called crowns,
etc., is not supported by proof of a stealing of a sum of
money consisting of some or other of the coins mentioned
in the indictment, without proof of some one or more of
the specific coins there charged to have been stolen. Of
course these decisions could not now be followed.
On sec. 129, see B. v. Pdquet, 2 L. N. 140.
131. In any indictment for forging, altering, offering, uttering,
disposing of or putting off any instrument, stamp, mark or thing, it
shall be sufficient to describe the same by any name or designation by
which the same is usually known, or by the purport thereof, without
750 PROCEDURE ACT.
Betting out any copy or fac simile thereof, or otherwise describing the
same or the value thereof.— 32-33 V., c 19, s. 49. 24-25 V., c. 98, s.
42, Imp.
132. In any indictment for engraving or making the whole or
any part of any instrument, matter or thing whatsoever, or for using
or having the unlawful custody or possession of any plate or other
material upon which the whole or any part of any instrument, matter
or thing whatsoever has been engraved or made, or for having the
unlawful custody or possession of any paper upon which the whole
or any part of any instrument, matter or thing whatsoever has been
made or printed it shall be sufficient to describe such instrument
matter or thing by any name or designation by which the same is
usually known, without setting out any copy or fac simile of the
whole or any part of such instrument, matter or thing. — 32-33 V., c.
19, s. 50. 24-25 V., c. 98, s. 43, Imp.
133. Any number of accessories at different times to any felony
may be charged with substantive felonies, in the same indictment,
and may be tried together, notwithstanding the principal felon is not
included in the same indictment, or is not in custody or amenable to
justice— 31 V., c. 72, s. 7, part. 24-25 V., c 96, s. 6, Imp.
See, ante, under c. 145.
Greaves' note. — This clause is framed from the 14-15 V.,
c. 100, s. 15, and the words in italics inserted. The com-
mittee of the Commons who sat on the 14-15 V., c. 100,
struck out those words, not perceiving that they were the
only important words in the clause : for there never was
any doubt that separate accessories and receivers might be
included in the same indictment under the circumstances
referred to in the clause ; the doubt was, whether they
could be compelled to be tried together in the absence of
the principal where they separately became accessories, or
separately received.
134. Several counts may be inserted in the same indictment
against the same person for any number of distinct acts of stealing, not
exceeding three, committed by him against the same person, within
six months from the first to the last of such acts, and all or any of
them may be proceeded upon— 32-33 V., c. 21, s. 5. 24-25 V., c. 96,
«. 5.
PROCEDURE ACT. 751
See R. v. Sv.prani, 13 R. L. 577, post, under sec. 202.
Before the passing of the act, it was no objection in
point of law that an indictment, contained separate counts
charging distinct felonies of the same degree, and com-
mitted by the same offender. — 2 Hale, 173 ; 1 Chit. 253 ;
R. v. Heywood, L. <£ C. 451. It was, in truth, a matter for
the discretion of the court ; and if the court thought the
prisoners would be embarrassed by the counts, the court
would either quash the indictment, or compel the counsel
for the prosecution to elect. — R. v. Young, 2 East, P. C.
515. It seems that, where three acts of larceny are
charged in separate counts there may also be three counts
for receiving. — R. v. Heywood, L. & 0. 451.
Greaves, on this clause, says : " It frequently happened
before this statute passed, that a servant or clerk stole
sundry articles of small value from his master at different
times, and in such a case it was necessary to prefer separ-
ate indictments for each distinct act of stealing, and on the
trial it not seldom happened that the jury, having their
attention confined to the theft of a single article of small
value, improperly acquitted the prisoner on one or more
indictments. The present section remedies these incon-
veniences, and places several larcenies from the same per-
son in the same position as several embezzlements of the
property of the same person, so that the prosecutor may
now include three larcenies of his property committed
within the space of six calendar months in the same indict-
ment."— Lord Campbell's Acts, by Greaves, 19.
See R. v. Benjield, 2 Buii\ 980. — The indictment need
not charge that the subsequent larcenies were committed
within six months after the commission of the first. — R.
v. Heywood, L. & C. 451.
135. In any indictment containing a charge of feloniously steal-
752 PROCEDURE ACT.
ing any property, a count, or several counts, for feloniously receiving
the same or any part or parts thereof, knowing the same to have been
stolen may be added, and in any indictment for feloniously receiving
any property, knowing it to have been stolen, a count for feloniously
stealing the same may be added. — 32-33 V., c. 21, s. 101, part. 24-25
V., c. 96, s. 92, Imp.
See remarks under preceding section.
The words "containing a charge of" are substituted for
the word " for " in the former act, in order that a count
for receiving may be added in any indictment containing
a charge of stealing any property. It will therefore apply
to burglary with stealing, housebreaking, robbery, etc. It
is also provided, by this clause, for cases which frequently
occur, and were not within the former clause ; where dif-
ferent prisoners may be proved to have had possession of
different parts of the stolen property. — Greaves' Cons.
Acts, 180.
136. Every one who receives any chattel, money, valuable secu-
rity or other property whatsoever, the stealing, taking, extorting, ob-
taining, embezzling and otherwise disposing whereof, amounts to a
felony either at common law or by statute, knowing the same to have
been feloniously stolen, taken, extorted, obtained, embezzled or dis-
posed of, may be indicted and convicted, either as an accessory after
the fact, or for a substantive felony, and in the latter case, whether
the principal felon has or has not been previously convicted, or is or
is not amenable to justice: Provided, that no person, howsoever tried
for receiving as aforesaid, shall be liable to be prosecuted a second
time for the same offence. — 32-33 V., c. 21, s. 100, part. 24-25 V.,c.
96, s. 91, Imp.
This clause applies to all cases where property has been
feloniously extorted, obtained, embezzled, or otherwise dis-
posed of, within the meaning of any section of this act. —
Greaves, Cons. Acts, 179.
See remarks under sees. 82 and 83 of The Larceny Act,
p. 443, ante.
137. Every such receiver may, if the offence is a misdemeanor
PROCEDURE ACT. 753
be indicted and tried for the mislemeanor, whether the person guilty
of the principal misdemeanor has or has not been previously con-
victed thereof, or is or is not amenable to justice. — 32-33 F.f c. 21, s.
104. part. 24-25 V., e. 96, s. 95.
138. Any number of receivers at different times, of property, or
any part or parts thereof, eo stolen, taken, extorted, obtained, em-
bezzled or otherwise disposed of at one time, may be charged with
substantive felonies in the same indictment, and may be tried together
notwithstanding that the principal felon is not included in the same
indictment, or is not in custody or amenable to justice. — 31 V , c- 72,
s. l,part. 32-33 V., c. 21, s. 102. 24-25 F., c. 96, s. 93, Lap.
See sec. 40 of c. 145, p. 28, ante.
139. In any indictment for any indictable offence, committed
after a previous conviction or convictions for any felony, misdemeanor
or offence or offences punishable upon summary conviction (and for
which a greater punishment may be inflicted on that account), it shall
be sufficient, after charging the subsequent offence, to state that the
offender was at a certain time and place, or at certain times and places
convicted of felony or of a misdemeanor, or of an offence or offences
punishable on summary conviction, as the case may be, and to state
the substance and effect only, omitting the formal part of the indict-
ment and conviction, or of the summary conviction, as the case may
be, for the previous offence, without otherwise describing the previous
offence or offences. — 32-33 V., c. 29, s. 26, part.
See s.s. 207 and 230, post.
This clause is taken from section 116 of the English
Larceny Act, 24-25 V., c. 96, and section 37 of the Eng-
lish Coin Act, 24-25 V., c. 99. The words in italics are
not in section 116 of the English Larceny Act; but are in
section 37 of the Coin Act. They clearly take away the
necessity, before existing, of setting out at length the pre-
vious indictment, etc., and of giving in evidence a copy of
that indictment.
The following remarks on section 116 of the English
Larceny Act apply to section 139 of our Procedure Act,
with the exception of the passage discussing whether this
clause of the English act applies only to the Larceny Act,
YY
754 PROCEDURE ACT.
or to any indictment for any offence. With us, sect. 139
of the Procedure Act clearly applies to all indictments for
any subsequent offence whatever.
Greaves says : " The words ' after charging a subsequent
offence' were inserted in order to render it absolutely
necessary always to charge the subsequent offence or
offences first in the indictment, and after so doing to allege
the previous conviction or convictions. This was the
invariable practice on the Oxford circuit, and the select
committee of the Commons were clear that it ought to be
universally followed, so that the previous conviction
should not be mentioned, even by accident, before a ver-
dict of guilty of the subsequent offence had been delivered.
Mr. Davis, Cr. L. 113, however, says : 'It seems to be
immaterial whether the prior conviction be alleged before
or after the substantive charge,' for which he cites R. v.
Hilton, Bell, G. C. 20. Now, that case was decided on
the 7-8 Geo. IV, c. 28, s. 1 1 , which had not in it the
words ' after charging the subsequent offence,' and is
therefore, no authority on the present clause in which
those words are inserted to render the course held suffi-
cient in M. v. Hilton unlawful. Whenever a statute
increases the punishment of an offender on a subsequent
eonviction, and gives no mode of stating the former con-
viction, the former indictment, etc, must be set out at
length, as was the case in mint prosecutions before the
present Coin Act ; but when a statute gives a new form
of stating the former conviction, that form must be strictly
pursued ; for no rule is more thoroughly settled than that
in the execution of any power created by any act of
Parliament, any circumstance required by the act, however
unessential and unimportant otherwise, must be observed,
and can only be satisfied by a strictly liberal and precise
PROCEDURE ACT. 755
performance, R. v. Austrey, 6 M. <k S. 319; and to sup-
pose that this clause, which makes it sufficient to allege
the former conviction ' after charging the subsequent
offence' can be satisfied by alleging it before charging the
subsequent offence, is manifestly erroneous.
" Mr. Davis Cr. L. 24, speaking of the similar clause
in the Coin Act, says : ' There is a difficulty under this
section in charging the subsequent offence as a felony
without previously showing that which makes it a felony,
namely, the previous conviction for misdemeanor. More-
over, arraigning the prisoner for the subsequent offence as
for a felony, is equivalent to saying that the prisoner has
been before convicted. The Legislature, perhaps, relies
upon the ignorance of the jury as to this distinction.'
" It should seem that this difficulty may easily be sur-
mounted. In the beginning of the indictment the subse-
quent offence may be alleged in exactly the same terms
as if it were a first offence, omitting the word ' felo-
niously;' then the previous conviction may be stated in
the ordinary way ; and then the indictment may conclude,
' and so the jurors aforesaid, upon their oath aforesaid, do
say that the defendant on, etc., in manner and form afore-
said, feloniously did ' (stating the subsequent offence
again). There not only appears to be no objection to
such an indictment, but it would rather seem to be the
more accurate form of pleading ; for the clauses which
make a subsequent offence after a conviction of a misde-
meanor, or of an offence punishable on summary convic-
tion, a felony, are in this form, ' whosoever, having been
convicted of any such misdemeanor, shall afterwards com-
mit any of the misdemeanors aforesaid, shall be guilty of
felony ; ' or, ' whosoever having been convicted of any such
offence (stealing fruit for insta nee) shall afterwards commit
756 PROCEDURE ACT.
any of the offences in this section mentioned, shall be
guilty of felony.' An indictment, therefore, in the form
suggested would be strictly in accordance with these
clauses ; and in principle it is supported by the forms of
indictment for perjury, and for murder where several are
charged as principals in the first and second degree, and
jR. v. Crighton, M. & R. 62, appears fully to warrant such
an indictment ; for there the indictment alleged that the
prisoner received a sum of money on account of his
masters, and ' did fraudulently embezzle ' part of it, ' and
so the jurors aforesaid, upon their oath aforesaid, do say
' that the prisoner on,' etc., ' in manner and form aforesaid
the said sum ' from his said masters 'feloniously did
steal,' etc. It was objected that the indictment did not
charge that the prisoner 'feloniously embezzled ; ' it was
answered that this was unnecessary ; as the indictment
in charging the embezzlement pursued the words of the
statute, and that it was sufficient in having drawn the
conclusion that so the prisoner feloniously stole the money ;
and, on a case reserved, the conviction was held right.
It is obvious that the clauses in these acts are precisely
similar to the clause on which that case was decided.
" It must not be supposed that in what I have said I
mean to raise a doubt as to the validity of an indictment
which follows the ordinary form , all I suggest is, that an
indictment in the form I have pointed out would be good.
". Mr. Saunders, Cr. L. 94, complains that this clause
does not provide against the clerk of assize or the clerk of
the peace announcing ' a true bill for felony after a pre-
vious conviction.' This practice was clearly irregular even
before this act passed, and the reason why no provision
was made against it was that no one on the select com-
mittee of the Commons had ever heard of such practice.
PROCEDURE ACT. 757
After the trouble the Legislature has taken to prevent the
previous conviction being mentioned till after the prisoner
has been convicted of the subsequent offence, it is to be
hoped that any court where such a practice may have pre-
vailed will forbid it in future.
" The proceedings on the arraignment and trial are now
to be as follows :
" The defendant is first to be arraigned on that part
only of the indictment which charges the subsequent
offence ; that is to say, he is to be asked whether he be
guilty or not guilty of that offence. If he plead not guilty,
or if the court order a plea of not guilty to be entered for
him under the 7-8 Geo. IV., c. 23, s. 2, or 9 Geo. IV., c.
54, s. 8 (section 145 Procedure Act), where he stands
mute or will not answer directly to the charge, then the
jury are to be charged in the first instance to try the
subsequent offence only. If they acquit of that offence,
the case is at an end ; but if they find him guilty of the
subsequent offence, or if he plead guilty to it on arraign-
ment, then the defendant is to be asked whether he has
been previously convicted as alleged, and if he admit that
he has, he may be sentenced accordingly ; but if he deny
it, or stand mute of malice, or will not answer directly to
such question, then the jury are to be charged to try
whether he has been so previously convicted, and this may
be done without swearing them again, and then the pre-
vious conviction is to be proved in the same manner as
before this act passed.
" The proviso as to giving evidence of the previous con-
viction, if the prisoner give evidence of his good character
remains unaltered.
" In a case tried at Gloucester siace this act came into
operation, the proof of the identity of the prisoner failed,
758 PROCEDUKE ACT.
and Willes, J., directed the jury to be discharged as to the
previous conviction, entertaining a doubt whether, if the
jury gave a verdict, it might not be pleaded to a future
indictment which alleged that previous conviction, and
therefore it may be well to say a few words on this point.
There is no authority bearing directly on the question, and
the pleas of autrefois oxquit and convict afford no support
to such a plea ; for the former rest3 on the ground that no
one ought to be put in peril a second time for the same
offence, and the latter on the ground that no one ought to
be punished twice for the same offence ; now the clauses
giving a higher punishment for having been previously
convicted, clearly take away the grounds on which both
these pleas rest ; and all that a finding in favor of a pris-
oner on the allegation of a previous conviction necessarily
amounts to is that the jury are not satisfied that he was
previously convicted. It by no means amounts to a
determination that he had not been previously convicted.
It may, therefore, well be doubted whether any such plea
would be good ; but, supposing that this difficulty were
surmounted, another obstacle presents itself. In order to
plead such a plea, the prisoner must set out the indictment
in the case where his identity was not proved and his
conviction for the felony charged in it, and aver that he
was the same person that was so convicted; for until he
had been so convicted the jury could have no jurisdiction
to inquire as to his previous conviction, and then it would
appear, by his own showing, that he had been convicted of
felony before the commission of the offence charged in the
indictment to which that plea was pleaded, and thus the
question would arise whether the court might not sentence
him accordingly. The clauses which apply to subsequent
offences merely state that if a person be convicted of any
PROCEDURE ACT. 759
such offence after a previous conviction he shall be more
severely punished, but never say in what manner the former
conviction must be shown. In some instances no form of
indictment or proof is given ; in others it is stated what
form of indictment and what evidence shall be sufficient.
But it is plain that such provisions are merely for the
purpose of facilitating the statement in the indictment and
the evidence in support of it, and they leave the question
as to the sufficiency of any other statement or proof wholly
unaffected ; and, therefore, where a defendant has by his
plea alleged that he has been previously convicted, it
seems open to contend that judgment might well be given
for a subsequent offence on such a record ; for the judg-
ment ought to be according to the merits as appearing on
the whole record.
" But even if this were not held to be so, such a plea
would disclose the previous conviction, and the court
would, no doubt, consider it as far as it could in awarding
the punishment for the subsequent offence ; even if the
court could not award any greater punishment than that
which was assigned to the subsequent offence alone. It
may, therefore, well be doubted whether any counsel would
think it prudent to plead such a plea.
" It is obvious, also, that in any case the prosecutor
may allege the previous conviction for felony in the case
where the proof of the previous conviction failed, and then
the prisoner can have no answer to it."
In A rchbold, 363, are found the following remarks and
form of conviction under sec. 33 of the English Larceny
Act sec. 19 of our Larceny Act. A3 observed before,
section 139 of our Procedure Act, is the reproduction of
section 116 of the English Larceny Act, under which the
said form of indictment and remarks, in Archbold, are
760 PROCEDURE ACT,
given so that these remarks may be usefully inserted here,
as entirely applicable to our own law on the subject.
INDICTMENT.
, to wit: The Jurors for our Lady the Queen,
upon their oath present, that J. S., on the day of
A. D. 1866, one oak sapling, of the value of two
shillings, the property of J. N., then growing in certain
land situate in the parish of , in the county of
unlawfully did steal, take and carry away, thereby then
doing injury to the said J. N., to an amount exceeding
the sum of one shilling, to wit, to the amount of two
shillings, against the form of the statute in such case
made and provided; and the jurors aforesaid, upon their
oath aforesaid, do say, that heretofore and before the
committing of the offence hereinbefore mentioned, to wit,
on the day of , A. D. 1865, at ,
in the county of , the said J. S. was duly con-
victed before J. P., one of her said Majesty's jus-
tices of the peace for the said county of for that
he the said J. S., on (etc., as in the first conviction
to the words,) against the form of the statute in such case
made and provided ; and the said J. S. was thereupon then
and there adjudged for his said offence to forfeit and pay,
the sum of five pounds, over and above the value of the
said tree so stolen as aforesaid, and the further sum of two
shillings, being the value of the said tree, and also to pay
the sum of shillings for costs: and, in default of
immediate payment of the said sums, to be imprisoned in
the , and there kept to hard labor for the space
of calendar months, unless the said sums should
be sooner paid ; and the jurors aforesaid, upon their oath
aforesaid, do further say, that heretofore and before the
PROCEDURE ACT. 761
committing of the offence first hereinbefore mentioned, to
wit, on the day of A. D. 1866, at ,
in the county of . the said J. S., was duly convicted
before L. S., one of Her Majesty's justices of the peace for
the said county of , for that he (etc., setting out the
second conviction in the same manner as the first and
proceed thus :) and so the j urors aforesaid, upon their oath
aforesaid, do say that the said J. S., on the day and year
first aforesaid, the said oak sapling, of the value of two
shillings, the property of the said J. N. then growing in the
said land, situate in the parish of , in the said
county of , feloniously did steal, take and carry
away, etc., against the form of the statute in such a case
made and provided.
" 2nd Count. — And the jurors aforesaid, upon their
oath aforesaid, do further present, that the said J. S. after-
wards, to wit, on the day of A. D. 1866,
one oak sapling of the value of two shillings, the property
of the said J. N., then growing in certain land, situate in
the said parish of , in the said county of ,
feloniously did steal, take and carry away, thereby then
doing injury to the said J. N., to an amount exceeding
the sum of one shilling, to wit, to the amount of two shil-
lings, against the form of the statute in such case made and
provided. And the jurors aforesaid, upon their oath afore-
said, do say, that heretofore and before the committing of
the offence in this count hereinbefore mentioned, to wit, on
the day of A. D. 1865 (Iiere set out the
first conviction asin the first count :) and the jurors afore-
said, upon their oalh aforesaid, do further say that here-
tofore, and before the committing of the offence in this
count first hereinbefore mentioned, to wit, on the
day of A. D. 1866 (here set out tfie second convic-
tion as directed in the first count.)
762 PROCEDURE ACT.
" A first and second offence against the 24 & 25 V., c.
96, s. 33 (sec. 19 of our Larceny Act), are both punishable
on summary conviction, but a subsequent offence against
that section is a felony. The 24-25 Vic, ch. 96, sec. 116
(sec. 139 of Procedure Act), enacts, that ' in any indictment
for any offence punishable under this act, and committed
after a previous conviction or convictions for any felony,
misdemeanor, or offence, or offences punishable under
summary conviction, it shall be sufficient, after charging
the subsequent offence, to state that the offender was at a
certain time and place, or at certain times and places con-
victed of felony, or of an indictable misdemeanor, or of an
offence or offences punishable upon summary conviction
(as the case may be) without otherwise describing the pre-
vious felony, misdemeanor, offence, or offences,' etc. It
appears clear from this enactment that it was intended that
the subsequent offence should first be charged, and in both
counts of the above form of indictment that course has
accordingly been adopted.
" It will be seen that the first count consists of three
parts : 1. The charge of the subsequent offence which is
charged as an offence, not as a felony ; 2. The charge of
the two previous summary convictions ; 3. An averment,
commencing, ' and so the jurors aforesaid,' etc. The reason
for charging the subsequent offence first has been already
given. The reason for charging it in the first instance as
an offence only is as follows : sec. 116, above referred
to, goes on to enact that 'the proceedings upon any indict-
ment for committing any offence after a previous convic-
tion or convictions shall be as follows (that is to say) the
offender shall, in the first instance, be arraigned upon so
much only of the indictment as charges the subsequent
offence, and if he plead not guilty, or if the court order a
PROCEDURE ACT. 763
plea of not guilty to be entered on his behalf, the jury-
shall be charged, in the first instance, to inquire concerning
such subsequent offence only, and if they find him guilty,
or if on arraignment he plead guilty, he shall then, and not
before.be asked whether he had been previously convicted,
as alleged in the indictment, and if he answer that he had
been so previously convicted, the court may proceed to
sentence him accordingly ; but if he deny that he had been
so previously convicted, or stand mute of malice, or will
not answer directly to such question, the jury shall then
be charged to inquire concerning such previous conviction
or convictions, and in such case it shall not be necessary
to swear the jury again, but the oath already taken by
them shall for all purposes be deemed to extend to such
last mentioned inquiry.'
"In pursuance of this enactment, therefore, the prisoner
must be first arraigned for the subsequent offence, and if
he plead not guilty, the jury must first inquire and give
their verdict concerning that subsequent offence. They
cannot find the prisoner guilty of felonious stealing at that
stage of the proceedings, for they are then ignorant of the
previous conviction, and, therefore, at that stage they can
only find him guilty of the offence of unlawfully stealing.
If they find him guilty of the unlawful stealing they are
then to inquire of the previous convictions ; if they find
him guilty of the previous convictions, or if he pleads
guilty to them, the ingredients are complete which make
the felony, which, however, up to that time they have
not expressly found. But then follows the third part of
the indictment, 'and so the jurors aforesaid,' etc. This
last part of the indictment, perhaps, need not be put to the
jury in so many words, as the verdict of guilty of the subse-
quent offence, together with the verdict of guilty of the
764 PROCEDURE ACT.
previous convictions, amount to a verdict of guilty of the
felony, and would, as it should seem, authorize the entry
of such a verdict on the record.
" That the omission of the word ' feloniously ' in the first
part of the indictment does not vitiate it, see R. v. Crigh-
ton, R. & R. 62, in which case an indictment for embez-
zlement was held good, in which the word 'feloniously'
was omitted before the word ' embezzled,' in the first part
of the indictment, which, however, concluded, and so the
jurors say that the prisoner did ' feloniously embezzle, steal,
take and carry away,' etc.
"Sec. 116 of 24-25 V., c. 96, is analogous to sec. 37 of
24-25 V., c. 99 (The Coinage Act) (these two clauses are
combined in sec. 139 of our Procedure Act,) and the
mode of proceeding at the trial above suggested was ap-
proved by the court of criminal appeal in R. v. Martin,
11 Cox, 343, where the prisoner was indicted under sec. 12
of 24-25 V., c. 99, for being unlawfully in possession of
counterfeit coin, after having been convicted of unlawfully
uttering counterfeit coin. The court held that, as sec. 37 of
24-25 Vic, c. 99 (sec. 139 and sec. 207 of our Procedure
Act) regulated the mode of proceeding at the trial, the
prisoner must be first arraigned upon the subsequent
offence and evidence respecting the subsequent offence
must first be submitted to the jury, and the charge of the
previous conviction must not be inquired into until after
the verdict on the charge of the subsequent offence.
"The second count varies from the first in charging the
subsequent offence in the first instance as a felony." —
Archbold.
In the case hereinbefore cited of R. v. Martin, 11 Cox,
343, Lush, J., said that when he decided the unreported
case mentioned in Archbold as a different ruling ou the
PKOCEDUEE ACT. 765
question, (p. 757 of the 17th edit.) his attention had not
been called to the clause under consideration, and he con-
curred with the court in the judgment, B. v. Goodwin,
10 Cox, 53-4, then stands overruled. Nor can B. v. Hilton,
Bell, C. C. 20, be followed in Canada since the enactment
of the said section of the Procedure Act.
In it!, v. Clark, Bears. 198, it was held that any
number of previous convictions may be alleged in the same
indictment, and, if necessary, proved against the prisoner;
by the aforesaid section this is undoubtedly also allowed.
In B. v. Fox, 10 Cox, 502, upon a writ of error by the
crown to increase the sentence, the Irish court of criminal
appeal perceived that it appeared from the record that the
provisions of sec. 116 of the Larceny Act, under which
the indictment had been tried, as to the arraigning of the
prisoner, etc., had been neglected, and, thereupon, quashed
the conviction.
In B- v. Spencer, 1 C. & K. 159, it was held that the
indictment need not state the judgment, but the introduc-
tion of the words given in italics, supra, in clause 139 of
the Procedure Act, seem to require with us the statement
of the judgment. It will be, at all events, more prudent to
allege it.
The ceitificate must state that judgment was given for
the previous offence and not merely that the prisoner is
convicted. — jR. v. Ackroyd, 1 C. & K., 158 ; B. v.
Stonnel, 1 Cox, 142; for the judgment might have been
arrested, and the statute says the certificate is to contain
the substance and effect of the indictment and conviction
for the previous offence ; until the sentence, there is no
perfect conviction.
See, post, sec. 25, c. 181, as to punishment in the case
of a second conviction for felony.
766 PROCEDURE ACT.
At common law, a subsequent offence is not punishable
more severely than a first offence ; it is only when a statute
declares that a punishment may be greater after a previous
conviction that this clause 139 of the Procedure Act
applies. So in an indictment for a misdemeanor, as for
obtaining money by false pretences, a previous conviction
for felony cannot be charged. — R. v. Garland, 11 Cox,
224. And then this clause does not prevent the prose-
cution from disregarding, if it chooses, the fact of a pre-
vious conviction and from proceeding as for a first offence.
But the court cannot take any notice of a previous con-
viction, unless it were alleged in the indictment and duly
proved on the trial, for giving a greater punishment than
allowed by law for the first offence. — R. v. Summers, 11
Cox, 248; R. v. Willis, 12 Cox, 192.
To complete the proof required on a previous conviction
charged in the indictment, when the prisoner does not
admit it, it must be proved that he is the same person that
is mentioned in the certificate produced, but it is not
necessary for this to call any witness that was present at
the former trial ; it is sufficient to prove that the defen-
dant is the person who underwent the sentence mentioned
in the certificate.— R. v. Crofts, 9 C. & P. 219; 2
Russ. 352.
By section 207 of the Procedure Act, it is enacted that,
if upon such a trial for a subsequent offence, the defendant
gives evidence of his good character, it shall be lawful for
the prosecutor to give in reply evidence of the previous
conviction, before the verdict on the subsequent offence is
returned, and then the previous conviction forms part of
the case for the jury on the subsequent offence.
It has been held on this proviso, that if the prisoner
cross-examines the prosecution's witnesses, to show that
PROCEDURE ACT. 767
he has a good character, the previous conviction may be
proved in reply. — R. v. Gadbury, 8 C. <£ P. 676.
This doctrine was confirmed in R. v. Shrimpton, 2 Den.
319, where Lord Campbell, C. J., delivering the judgment
of the court, said : " It seems to me to be the natural and
necessary interpretation to be put upon the words of the
proviso in the statute, that if, whether by himself or by
his counsel, the prisoner attempts to prove a good character,
either directly, by calling witnesses, or indirectly, by cross-
examining the witnesses for the crown, it is lawful for the
prosecutor to give the previous conviction in evidence for
the consideration of the jury." In the course of the argu-
ment Lord Campbell said that, however, he would not admit
evidence of a previous conviction, if a witness for the pros-
ecution, being asked by the prisoner's counsel some ques-
tion which has no reference to character, should happen to
say something favorable to the prisoner's character.
It is said in 2 Russ. 354 : " It is obvious, that where
the prisoner gives evidence of his good character, the proper
course is fur the prosecutor to require the officer of the
court to charge the jury with the previous conviction, and
then to put in the certificate and prove the identity of the
prisoner in the usual way. If the prisoner gives such
evidence during the course of the case for the prosecution,
then this should be done before the case for the prosecu-
tion closes ; but if the evidence of character is given after
the case for the prosecution closes, then the previous
conviction must be proved in reply."
See sec. 86, c. 178, Summary Convictions Act and sec.
230, jiost, as to what is sufficient proof of a conviction.
PRELIMINARY REQUIREMENTS AS TO CERTAIN INDICTMENTS.
140. No bill of indictment for any of the offences following, that
is to say, perjury, subornation of perjury, conspiracy, obtaining
768 PROCEDURE ACT.
money or other property by false pretences, forcible entry or detainer,
nuisance, keeping a gambling bouse, keeping a disorderly bouse, or
any indecent assault, shall be presented to or found by any grand
jury, unless the prosecutor or other person presenting such indict-
ment has been bound by recognizance to prosecute or give evidence
against the person accused of such offence, or unless the person
accused has been committed to or detained in custody, or has been
bound by recognizance to appear to answer to an indictment to be
preferred against him for such offence, or unless the indictmentfor
such offence is preferred by the direction of the attorney general or
solicitor general for the province, or by the direction or with the
consent of a court or judge having jurisdiction to give such direction
or to try the offence ;
2. Nothing herein shall prevent the presentment to or finding by a
grand jury of any bill of indictment, containing a count or counts for
any of such offences, if such count or counts are such as may now
be lawfully joined with the rest of such bill of indictment, and if the
same count or counts are founded, in the opinion of the court in or
before which the said bill of indictment is preferred, upon the facts or
evidence disclosed in any examination or deposition taken before a
justice in the presence of the person accused or proposed to be accused
by such bill of indictment, and transmitted or delivered to such court
in due course of law.— 32-33 V., c. 29, s. 28. 40 F., c. 2G, ss. 1 and 2.
Sec. 80, ante, applies to this sec. 140; and, held, that
if the magistrate dismisses the charge and refuses to
commit or bail the person accused, he is bound, if required
to do so, to take the prosecutor's recognizance to prosecute
the charge. — R. v. Lord Mayor, 16 Cox, 77. See ex
parte Wason, 38 L. J. Q. B. 302.
This clause 140 forms in England the acts known as the
" Vexatious Indictments Act,"— 22-23 V., c. 17 and 30-31
V., c. 35.
The following offences fall under this enactment :
Perjury,
Subornation of Perjury,
Conspiracy,
Obtaining money or other property by false pre-
tences,
PROCEDURE ACT. 769
Keeping a gambling house,
Keeping a disorderly house,
Any indecent assault.
Nuisance, and forcible entry and detainer.
The reasons for this legislation are thus given in Arch-
bold, page 5 : " Formerly any person was at liberty to
prefer a bill of indictment against any other before a grand
jury for any crime, without any previous inquiry before a
justice into the truth of accusation. This right was often
much abused, because, as the grand jury only hear the
evidence for the prosecution, aQd the accused is totally
unrepresented before them, it frequently happened that a
person wholly innocent of the charge made against him,
and who had no notice that any proceedings were about to
be instituted, found that a grand jury had been induced to
find a true bill against him, and so to injure his char-
acter and put him to great expense and inconvenience in
defending himself against a groundless accusation. The
above provisions have been introduced, in order in some
degree to remedy this state of the law."
The Imperial statute requires that the indictment, when
authorized by a judge, or by the attorney general or solici-
tor general, should be preferred by the direction, or v:ith
the consent in writing, of such judge, or attorney general,
or solicitor general. Though the words " in writing " are
omitted in our statute, there is no doubt that no verbal
proof of such a direction would be sufficient for the grand
jury, and that this direction must be in writing. By the
terms of the clause itself, any judge of any court having juris-
diction to try the offence may give this direction, as well
as any judge authorized to direct that a person guilty of
perjury before him be prosecuted, under sec. 4. of c. 154,
p. 42, ante.
2Z
770 PROCEDURE ACT.
It is not necessary that the performance of any of the
conditions mentioned in this statute should be averred in
the indictment or proved before the petit jury. — Knowlden
v. B. (in error), 5 B. & S. 532; 9 Cox, 483.
When the indictment is preferred by the direction in
writing of a judge of one of the superior courts, it is for
the judge to whom the application is made for such
direction to decide what materials ought to be before
him, and it is not necessary to summon the party accused
or to bring him before the judge ; the court will not inter-
fere with the exercice of the discretion of the judge under
this clause.— B. v. Bray, 3 B. & S. 255 ; 9 Cox, 215.
The provisions of the above statute must be complied
with in respect to every count of an indictment to which
they are applicable, and any count in which they have
not been complied with must be quashed. — B. v. Fuidge,
L. & C. 390 ; 9 Cox, 430 ; B. v. Bradlaugh, 15 Cox,
156. So if an indictment contains one count for obtaining
money by false pretences on the 26th of September,
1873, and another count for obtaining money by false,
pretences on the 29th of September, 1873, though the
false pretences charged be the same in both cases, the
second count must be quashed, if the defendant appears to
have been committed only for the offence of the 26th Sep-
tember.
Where three persons were committed for conspiracy, and
afterwards the solicitor general, acting under this clause,
directed a bill to be preferred against a fourth person, who
had not been committed, and all four were indicted together
for the same conspiracy, such a course was held unobjec-
tionable.— Knowlden v. B. (in error), 5 B. & S. 532 ; 9
Cox, 483.
Where it is made clear, either on the face of an indict-
PROCEDURE ACT. 771
ment or by affidavit, that it has been found without juris-
diction, the court will quash it on motion of the defendant,
even after he has pleaded ; but in a doubtful case, they
will leave him to his writ of error. — B. v. Heane, 4 B. <t% S.
947 ; 9 Cox, 433.
A prosecutor who has required the magistrates to take
his recognizances to prosecute under sec. 80 of the Procedure
Act, when the magistrates have refused to commit or to
bail for trial the person charged, must either go on with
the prosecution or have his recognizances forfeited, as it
would defeat the object of the statute if he was allowed to
move to have his recognizances discharged. — B. v. Har-
greaves, 2 F. & F. 790.
Held, that where one of the preliminary formalities
mentioned in this section is required, the direction by a
Queen's counsel, then acting as crown prosecutor, for and
in the name of the attorney-general is not sufficient.
The attorney-general or solicitor-general alone can give
the direction. — Abrahams v. The Queen, 6 S. C. B. 10.
A person prosecuting under sec. 140 of the Procedure
Act, has no right to be represented by any other counsel
than the representative of the attorney general. — B. v.
St. Amour, 5, B. L. 469.
Attempting to obtain money by false pretences does not
come within this section. — R. v. Burton, 13 Cox, 71.
As to the interpretation of sub-sec. 2 of the said section,
see B. v. Bradlaugh, 15 Cox, 156; also B. v. Bell, 12
Cox, 37.
PLEAS.
141. No person prosecuted shall be entitled as of right to traverse
or postpone the trial of any indictment preferred against him in any
court, or to imparl, or to have time allowed him to plead or demur to
any such indictment ; provided always, that if the court, before which
772 PROCEDURE ACT.
any person is so indicted, upon the application of such person, or
otherwise, is of opinion that he ought to be allowed a further time to
plead or demur or to prepare for his defence, or otherwise, such court
may grant such further time to plead or demur, or may adjourn the
receiving or taking of the plea or demurrer and the trial, or, as the
case may be, the trial of such person, to a future time of the sittings
of the court or to the next or any subsequent session or sittings of
the court, and upon such terms, as to bail or otherwise, as the court
seem meet, and may, in the case of adjournment to another session or
sitting, respite the recognizances of the prosecutor and witnesses
accordingly, in which case the prosecutor and witnesses shall be
bound to attend to prosecute and give evidence at such subsequent
session or sittings, without entering into any fresh recognizances for
that purpose.— 32-33 V., c. 29, s. 30.
See sees. 273 and 274, post, as to special provisions for
Ontario, in cases of misdemeanor.
Formerly, it was always the practice in felonies to try
the defendant at the same assizes; 1 Chitty, C. L. 483 ; but
it was not customary nor agreeable to the general course
of proceedings, unless by consent of the parties, or where
the defendant was in gaol, to try persons indicted for mis-
demeanors during the same term in which they had
pleaded not guilty or traversed the indictment. — 4 Black-
stone, 351.
Traverse took its name from the French de traverst
which is no other than de transverso in Latin, signifying
on the other side ; because as the indictment on the one side
chargeth the party, so he, on the other side, cometh in to
discharge himself. Lambard, 540.
The word traverse is only applied to an issue taken
upon an indictment for a misdemeanor ; and it should
rather seem applicable to the fact of puttiug off the trial
till a following sessions or assizes, then to the joining of
the issue ; and, therefore, perhaps, the derivation is from
the meaning of the word transverto, which, in barbarous
Latin, is to go over, i.e., to go from one sessions, etc.,
PROCEDURE ACT. 773
to another, and thus it is that the officer of the court
asks the party whether he be ready to try then, or will
traverse over to the next sessions, etc., but the issue
is joined immediately by pleading not guilty. — 5 Burn,
1019.
To traverse properly signifies the general issue or plea
of not guilty. — 4 Stephens' Comm. 419.
To imparl is to have licence to settle a litigation ami-
cably, to obtain delay for adjustment. — Wharton's Law
Lexicon, verbo "im/xirL"
The above section of our Procedure Act is taken from
the 60 Geo. III. and 1 Geo. IV., c. 4, ss. 1 and 2, and
the 14-15 V., c. 100, s. 27, and abolishes all these dis-
tinctions between felonies and misdemeanors.
On the 14-15 V., c. 100, s. 27, Greaves says :—
il This section is intended wholly to do away with tra-
verses, which were found to occasion much injustice. A
malicious prosecutor could formerly get a bill for any
frivolous assault found by the grand jury, and cause the
defendant to be apprehended during the sitting of the court ;
and then he was obliged to traverse till the next session or
assizes, as he could not compel the prosecutor to try the
case at the sessions or assizes at which the bill was found.
This led to the expense of the traverse-book and sundry
fees, which operated as a great hardship on the defendant,
not unfrequently an innocent person. Again, the defendant,
in many instances, has been able to turn his right to tra-
verse into a means of improperly putting the prosecutor
to expense and inconvenience. The intention of the section
is to abolish traverses altogether, and to put misdemeanors
precisely on the same footing in this respect as felonies.
In felonies, the prisoner has no right to postpone his trial,
but the court, on proper grounds, will always postpone the
774 PROCEDURE ACT.
trial. Under this section, therefore, no defendant in a case
of misdemeanor can insist on postponing his trial ; but the
court in any case, upon proper grounds being adduced, not
only may, but ought to, order the trial to be postponed. If
therefore, a witness be absent, or ill, or there has not been
reasonably sufficient time for the defendant to prepare for
his defence, or there exist any other ground for believing
that the ends of justice will be better answered by the trial
taking place at a future period, the court would exercise a
very sound discretion in postponing the trial accordingly."
d There are several cases in which, upon a proper appli-
cation, the court will put off the trial. And it has been
laid down that no crime is so great, and no proceedings so
instantaneous, but that the trial may be put off, if sufficient
reasons are adduced to support the application ; but to
grant a postponement of a trial on the ground of the absence
of witnesses, three conditions are necessary : 1st, the court
must be satisfied that the absent witnesses are material
witnesses in the case ; 2nd, it must be shown that the party
applying has been guilty of no laches or neglect in omit-
ting to endeavor to procure the attendance of these
witnesses; and, 3rd, the court must be satisfied that there
is a reasonable expectation that the attendance of the
witnesses can be procured at the future time to which
it is prayed to put off the trial. — B. v. D'Eon, 3 Burr.
1514.
But if an affidavit is given that, on cross-examination, one
of the absent witnessses for the prosecution who has been
bound over to appear, can give material evidence for the
prisoner, this is sufficient ground for postponing the trial,
without showing that the defence has made any endeavour
to procure this witness, attendance as the prisoner was
justified in believing that, being bound over, the witness
would be present.— B. v. McCarthy, C. & M. 625.
PROCEDURE ACT. 775
In R. v. Savage, 1 C. <& K. 75. the court required an
affidavit stating what points the absent witness was expect-
ed to prove, so as to form an opinion as to the witness
being material or not.
The party making an application to postpone a trial, on
the ground of the absence of a witness, is not bound in his
affidavit to disclose all that the absent witness can testify
to, but he must show that the absent witness is likely to
prove some fact which may be allowed to go to the jury ;
he must also show the probability of having the witness at
a later term. — R. v. Dougall, 18 L. C. J. 85.
The court will postpone until the next assizes the trial
of a prisoner charged with murder, on an affidavit by his
mother that she would be enabled to prove by several wit-
nesses that he was of unsound mind, and that she and her
family were in extreme poverty, and had been unable to
procure the means to produce such witnesses, and that she
had reason to believe that if time were given to her, the
requisite funds would be provided. — R. v. Langhurst, 10
Cox, 353.
. But the affidavit of the prisoner's attorney, setting forth
the information he had received from the mother, is insuffi-
cient.— Idem.
Upon an indictment for a murder recently committed,
the court will postpone the trial, upon the affidavit of the
prisoner's attorney that he had not had sufficient time to
prepare for the defence, the affidavit suggesting the possi-
bility of a good ground of defence. — R. v. Taylor, 11 Cox,
340.
If the application is made by the defendant, he shall be
remanded and detained in custody until the next assizes or
sessions ; but where the application is made by the prose-
cutor, it is in the di-icretion of the court either, on conside-
776 PROCEDURE ACT.
ration of the circumstances of each particular case, to detain
the defendant in custody, or admit him to bail, or to dis-
charge him on his own recognizance. — R. v. Beardmore,
7 C. & P. 497; R. v. Parish, 7 C.&P.782; R.y. Osborn,
7 C. & P. 799 ; R. v. Bridgman, C. & M. 271. But,
as a general rule, after a bill has been found, if the offence
be of a serious nature, the court will not admit the prisoner
to bail. — R. v. Chapman, 8 C.&P. 558 ; R. v. Guttridge,
9 C. & P. 228; R. v. Owen, 9 C. & P. 83 ; R. v. Bowen,
9 C.&P. 509; 5 Burn, 1032.
The production of fresh evidence on behalf of the prose-
cution (not known or forthcoming at the preliminary inves-
tigation, and not communicated to the defence a reasonable
time before the trial) may be a ground for postponing the
trial, on the request of the defence, if it appears necessary
to justice. — R. v. Flannagan, 15 Cox, 403.
On the finding of an indictment for perjury, application
was made for defendant to appear by counsel and plead : —
Held. — That he should submit to the jurisdiction of the
court, and appear himself, before he can be allowed to
take any proceedings therein. — R. v. Maxwell, 10 L. G.
R. 45.
142. No indictment shall be abated by reason of any dilatory plea
of misnomer, or of want of addition, or of wrong addition, of
any person offering such plea ; but if the court is satisfied, by
affidavit or otherwise, of the truth of such plea, the court shall
forthwith cause the indictment to be amended according to the truth,
and shall call upon such person to plead thereto, and shall proceed
ae if no such dilatory plea had been pleaded. — 32-33 F., c. 29, s. 31.
This clause is taken from the 7th Geo. IV., c. 64, s. 19
of the Imperial Statutes.
See post, sec. 238, where, inter alia, a variance in names
may be amended.
The name of the prisoner is not a matter of essential
PROCEDURE ACT. 777
description, because on this subject the prosecutor may
have no means of obtaining correct information. If, there-
fore, the prisoner's name or addition be wrongly described,
or if the addition be omitted, the court may correct the
error, and call upon the prisoner to plead to the amended
indictment.
And now, the total omission of any addition to the name
of the defendant is of no consequence, as has been seen
ante, under sec. 128.
In R. v. Orchard, 8 C. & P. 565, a woman charged with
the murder of her husband, being described as "A., the
wife of B. C," the record was amended by inserting the
word " widow " instead of " wife.''
The plea in abatement is now very little used, as well
in consequence of this section as of sec 143, see post.
However, if pleaded, it must be remembered that it is
always required to be framed with the greatest accuracy
and precision, and must point out the objection, so that it
may be readily amended or avoided in another prosecution.
— O'Connell v. R., in error, 11 C. & F. 155 ; so in a plea
of misnomer, the defendant must disclose his real name.
By sec. 2 of the Procedure Act, see, ante, the word " indict-
ment " includes " any plea," so that a plea in abatement
may be amended in the same cases where an indictment
would be amendable.
By the 4 Anne, c. 16, s. 17, it is enacted that no
dilatory plea shall be received, unless the party offering
such plea do by affidavit prove the truth thereof ; so a plea
in abatement to an indictment will be set aside, if not
Bworn to or accompanied by an affidavit. — R. v. Grainger
3 Burr. 1617 ; 22. v. Duffy, 9 Ir. L. R. 163.
If the name of the defendant be unknown, and he
refuse to disclose it, an indictment against him as " a
778 PROCEDURE ACT.
person whose name is to the jurors unknown, but who was
personally brought before the said jurors by the
keeper of prison," will be sufficient. — R. v. ,
R. &R.489.
Whatever mistake may exist in the indictment, in res-
pect of the name of the defendant, if he appears and pleads
not guilty, he cannot afterwards take advantage of the
error.— 1 Chit. 202 ; 1 Bishop, Or. Proc. 677.
As a rule, the plea in abatement must be pleaded before
any plea in bar when the prisoner is arraigned ; 2 Hale,
175. But the court may, in its discretion, allow the with-
drawal of the plea of not guilty, so as to allow the prisoner
to plead in abatement or to the jurisdiction or to demur:
Kinlock's case, Fost. 16; R. v. Purchase, C.& M. 617.
And this is entirely in the discretion of the judge, who
should allow it for the purpose of substantial justice, but
not to enable the prisoner to take advantage of a mere
technicality. — R. v. Turner, 2 M. & Rob, 214; R. v.
Brown, 1 Den. 291 ; R. v. Odgers, 2 M. & Rob. 479.
Bishop, 1 Cr. Proc. 884, says, that by a plea in abate-
ment, the defendant can avail himself of the objection that
the grand jury finding the indictment consisted of more
than twenty-three members.
143. Every objection to any indictment for any defect apparent on
the face thereof shall be taken by demurrer or motion to quash the
indictment, before the defendanthas pleaded, and not afterwards ; and
every court before which any such objection is taken may, if it is
thought necessary, cause the indictment to be forthwith amended in
such particular, by some officer of the court or other person, and
thereupon the trial shall proceed as if no such defect had appeared ;
and no motion in arrest of judgment shall be allowed for any defect in
the indictment which might have been taken advantage of by
demurrer, or amended under the authority of this Act. — 32-33 V., c. 29,
s. 32.
The Imperial statute, from which this clause is taken,
reads as follows :
PROCEDURE ACT. 779
" Every objection to any indictment for any formal
defect apparent on the face thereof shall be taken by
demurrer or motion to quash such indictment before the
jury shall be stvorn, and not afterwards ; and every court
before which any such objection shall be taken for any
formal defect may, if it be thought necessary, cause the
indictment to be forthwith amended in such particular by
some officer of the court or other person, and thereupon
the trial shall proceed as if no such defect had appeared."
—14-15 V., c. 100, s. 25.
Greaves says on this clause : " Under this section all
formal objections must be taken before the jury are sworn.
They are no longer open upon a motion in arrest of judg-
ment or on error. By the common law, many formal
defects were amendable; see 1 Chit. 297, and the cases
there cited ; and it has been the common practice for the
grand jury to consent, at the time they were sworn, that
the court should amend matters of form. — 2 Hawkins,
c. 25, 8. 98. The power of amendment, therefore, given in
express terms by this section, seems to be no additional
power, but rather the revival of a power that had rarely, if
ever, been exercised of late years."
A motion for arrest of judgment will always avail to
the defendant for defects apparent on the face of the indict-
ment, when these defects are such that thereby no offence
in law appears charged against the defendant. Such an
indictment cannot be aided by verdict, and such defects
are not cured by verdict. As said in R. v. Waters, 1 Den.
356 : " There is a difference between an indictment which
is bad for charging an act which, as laid, is no crime, and
an indictment which is bad for charging a crime defec-
tively ; the latter may be aided by verdict, the former
cannot."
780 PROCEDURE ACT.
Defects in matters of substance are not amendable, so
if a material averment is omitted the court cannot allow the
amendment of the indictment by inserting it, for the very-
good reason that if there is an omission of a material aver-
ment, of an averment without which there is no offence
known to the law charged against the defendant, then
strictly speaking there is no indictment ; there is nothing
to amend by.
In a criminal charge there is no latitude of intention
to include anything more than is charged; the charge
must be explicit enough to support itself. Per Lord Mans-
field, R. v. Wheatly, 2 Burr. 1127.
The court cannot look to what the prosecutor intended
to charge the defendant with ; it can only look to what he
has charged him with. And this charge, fully and clearly
defined, of a crime or offence known to the law, the indict-
ment as returned by the grand jury must contain. If the
indictment as found by the grand jury does not contain
such a charge, the defect is fatal; if the grand jury has
not charged the defendant with a crime, it will not be
allowed, at a later period of the case, to amend the indict-
ment so as to make it charge one.
It must not be forgotten that when the clerk of the
court, on the grand jury returning the bill, asked them to
agree that the court should amend matters of form in the
indictment, the grand jury gave their assent, but on the
express condition that no matter of substance should be
altered. Who are the accusers on an indictment ? The
grand jury, and to their accusation only has the prisoner to
answer. This accusation cannot be changed into another
one, at any time, without the consent of the accuser. — 1
Chit. 298, 324. And if they have brought against the
prisoner an accusation of an offence not known in law, the
PROCEDURE ACT. 781
court cannot turn it into an offence known in law, by add-
ing to the indictment.
This section, though the word " formal " is not in it as
in the English Act, must be interpreted as obbging the defen-
dant to demur or move to quash before joining issue, for
defects apparent on the face of the indictment, which the
court has the power to amend. In cases where the court
has not the power to amend the defect or omission, the
motion for arrest of judgment will avail to the defendant
as heretofore. And this clause itself supposes cases where
the court has not the power to amend, when it says that :
* No motion in arrest of judgment shall be allowed for any
defect in the indictment which might have been taken advan-
tage of by demurrer, or amended under the authority of
this act',1 given certainly to understand that " a motion for
arrest of judgment shall be allowed for any de ect in the
indictment which could not have been taken advantage of
by demurrer or amended under the authority of this act''
leaving the question reduced to : What are the amendments
allowed, under the authority of this act ? Which can be, it
seems, very easily answered. Of course this clause has no
reference to the amendments allowed on the trial, by sections
237 and 238, see post. These do not relate to defects
apparent on the face of the indictment, and cannot, in
consequence, be the subject of a motion in arrest of judg-
ment. Then the only other clause in the act relating to
amendments is this section 143. And it does not authorize
amendments in matters of substance or material to the
issue. For instance, if the word " feloniously " in an indict-
ment for felony has been omitted, the court cannot allow
its insertion. This would be adding to the offence charged
by the grand jury; it would be a change of its nature and
gravity ; note a, by Greaves, 1 Muss. 935 ; R. v. Gray, L.
& C. 365.
782 PROCEDURE ACT.
And in an indictment intended to be for burglary, the
word u burglariously," if omitted, cannot be inserted by
amendment. It would be charging the defendant with
burglary when the grand jury have not charged him with
that offence. And in an indictment intended to be for mur-
der, if it is barely alleged that the mortal stroke was given
feloniously, or that the defendant murdered, etc., without
adding of malice aforethought, or if it only charge that he
killed or slew without averring that he murdered the deceas-
ed, the defendant can only be convicted of manslaughter.
—1 East, P. C. 345 ; 1 Chit. 243 ; 3 Chit. 737, 751. And
why ? Because the offence charged is manslaughter, not
murder. And the court has not the power by any amend-
ment to try for murder a defendant whom the grand jury
has charged with manslaughter.
And even, in the case of a misdemeanor, on an indict-
ment for obtaining money by false pretences, if the words
" with intent to defraud " are omitted in the indictment,
there is no offence charged, and the court cannot allow
their insertion by amendment ; R. v. James, 12 Cox, 127,
per Lush, J. ; see Archbold, 60. So if a statute makes it
an offence to do an act " wilfully " or " maliciously " the
indictment is bad if it does not contain these words ; R. v.
Bent, 1 Den. 157 ; R. v. Ryan, 2 Moo. C. C. 15; R. v.
Turner, 1 Moo. C. C. 239 ; it does not charge the defen-
dant with a crime.
And whether the defendant takes advantage of an
objection of this nature, or not, makes no difference. Nay,
even after verdict, even without a motion in arrest of
judgment, the court is obliged to arrest the j udgment, if
the indictment is insufficient. — R. v. Wheatly, 2 Burr.
1127; 1 Chit. 303; R. v. Turner, 1 Moo. C. C. 239; R.
v. Webb, 1 Den. 338 ; see also Sills' Case, Dears. 132.
PROCEDURE ACT. 783
' "These omissions are not defects in the sense of this
word as used in this section ; they make the indictment
no indictment at all, or, at least, the indictment charges
the defendant with no crime or offence.
On these principles, the Court of Queen's Bench, in
Quebec, decided R. v. Carr, 26 L. C. J. 61. See, post,
under sec 246.
In this case the indictment was under sec. 10, of c. 20,
32-33 V., now sec. 8, c. 162, for an attempt to murder.
A verdict of guilty was given, but the court being of
opinion that the indictment was defective on its face, and
that words material to the constitution of the offence
charged were omitted therein, granted a motion to arrest
the judgment and quash the indictment, though the pros-
ecutor invoked section 32, now sec. 143 of the Procedure
Act, and contended that the prisoner was too late to take
the objection. Undoubtedly, if this indictment had been
at first demurred to, the Court of Queen's Bench would
have quashed it, and would not have allowed it to be
amended. Sections 128 and 245 by enacting that, even
after verdict an indictment shall not be held insufficient
for want of the averment of any matter not necessary to
be proved, cannot be made to say that an indictment not
averring a matter necessary to be proved is sufficient, or
that a verdict on such indictment will not be quashed.
Section 143 leaves the law of amendments what it is
at common law. It leaves to the judge the discretion of
allowing or refusing the amendment, and in matter of
substance, no such amendment can be allowed. An irre-
gularity may be amendable, but a nullity is incurable, and
it has been held, that the court itself, ex proprio motu,
will refuse to try an indictment on which plainly no good
judgment can be rendered. — R. v. Tremearne, R. & M.
147 : R. v. Beacon. R. & M. 27.
784 PKOCEDURE ACT.
The ruling in the case of R. v. Mason, 22 U. ft ft P.
246, is not a contrary decision. The concluding remarks
of Gwynne, J., show that the court in that case never
went so far as to hold that no arrest of judgment or rever-
sal on error should, in any case, be granted for any defect
whatever in the indictment, apparent on the face thereof.
What can be gathered from these remarks, taken together
with those of Hagarty, C. J., is, that it was there held
that the objections taken would even not have been good
grounds of demurrer, or that if they had been raised by
demurrer, the court would have had the power to amend
the indictment in such particulars, and that, therefore,
the defendant was too late to raise these objections after
verdict. And this ruling is perfectly right.
As remarked, ante, if the defect is one which the court
could amend, the objection must be taken in limine litis ;
a plea of not guilty may then be a waiver of the right to
take advantage of such a defect. But if the indictment is
defective in a matter of substance, a plea of not guilty is
no waiver. Nay, more, a plea of guilty is no waiver, and
does not prevent the defendant from taking exceptions in
arrest of judgment to faults apparent on the record. — 1
Chit. 431 ; 2 Hawkins, 466. The court, as said before,
cannot allow an amendment adding, for instance, to the
offence charged, or having the effect to make the indict-
ment charge an offence where none, in law, was charged,
or to change the nature of the offence charged by the
grand jury, and the statute obliges to demur or move to
quash before plea, only for objections based on amendable
defects. t
It is true, as remarked by the learned judge in R. v.
Mason, that the last part of this clause of our statute,
taking away, in express words, the motion in arrest of
PROCEDFRE ACT. 785
judgment, is not in the Imperial statute; but it will
be seen, ante, that Mr. Greaves, who framed the Eng-
lish clause, is of opinion that even without these words,
it has the same effect ; the words and not afterwards, in
the English Act, cannot be interpreted otherwise.
Another difference between the two acts consists in the
words before the defendant lias pleaded in the Canadian
Act, instead of before the jury shall be sworn in the
English ono. This is not an important change, however.
In all cases, a demurrer must be pleaded before the plea
of " not guilty," though the same may not strictly be said
of the motion to quash. — R. v. Heane, 9 Cox, 433. And
the judge may allow a plea of "not guilty " to be with-
drawn in order to give the defendant his right to demur
or move to quash for any substantial defect. See cases
under next section.
Greaves' Note, MSS. — " I altogether concur in the re-
marks on the omission of ' formal ' before ' defect ' in the
1-4-15 V., c. 100, s. 25. If construed according to the terms
under the new clause, a man might be hanged for what was
really no crime, because he was too ignorant to perceive the
defect in the statement of the offence in due time."
If the indictment does not charge any offence, the
court cannot amend it so as to make it charge an offence.
— R. v. Norton, 16 Cox, 59. See R. v. Flynn, under
s. 13, c. 162, p. 163, ante.
Indictments may be signed by the clerk of the crown,
or by a counsel, prosecuting for the crown " for and in
the name of the attorney general of the Province." — R.
v. Grant, 2 L. C. L. J. 276 ; R. v. Downey, 13 L. 0. J.
193 ; R. v. Ouellette, 7. R. L. 222 ; R. v. Regnier, Ram-
say's App. Cos. 188.
A defective indictment may be quashed on motion as
well as on demurrer.— R. v. Bathgate, 13 L. C. J. 299.
AAA
786 PROCEDURE ACT.
'. Everything that is necessary to constitute the offence
must be alleged in the indictment. — R. v. Bourdon, 2 R.
L. 713.
On an indictment for defrauding a bank, the indict-
ment was amended by adding the words " a body cor-
porate,"— R. v. Paquet, 2 L. Ar. 140.
Defendant was indicted as mistress of a certain girl
called Marie. At the trial, the indictment was amended
by striking out that she was such mistress, and inserting
the girl's right name. — jB. v. Bissonette, 23 L. C. J. 249.
See also R. v. Leonard, 3 L. JV. 138.
An indictment for perjury, based on an oath alleged to
have been made before the "judge of the general sessions
of the peace in and for the said district " instead of
" before the judge of the sessions of the peace in and for
the city of Montreal," may be amended after plea. — R. v.
Pelletier, 15 X. G. J. 146.
It is not a misjoinder of counts to add allegations of a
previous conviction for misdemeanor, as counts, to a count
for larceny ; and the question, at all events, can only be
raised by demurrer or motion to quash the indictment,
under 32-33 V., c. 29, s. 32. And where there has been
a demurrer to such allegations as insufficient in law, and
judgment in favor of the prisoner, but he is convicted on
the felony count, a court of error will not re-open the
matter on the suggestion that there is a misjoinder of
counts.
Where a prisoner arraigned on such an indictment pleads
" not guilty " and is tried at a subsequent assize when the
count for larceny only is read to the jury :
Held, no error, as the prisoner was given in charge on
the larceny count only. — R. v. Mason, 22 U. C. C. P.
246.
PROCEDURE ACT. 787
Defendant was convicted on an indictment charging him
with feloniously receiving goods of three different persons
(naming them) knowing the same to have been feloniously
stolen :
Held, that the defendant, having pleaded to the indict-
ment could not, in arrest of judgment, object that it was
bad as charging him with receiving goods not alleged to
have been feloniously stolen, as the defect was aided by
the verdict under the act of 1869, c. 29, s. 32, and the
fact of three different offences being charged in the indict,
ment, if objectionable at all, could not be taken advantage
of after verdict.
An order for an extra jury panel under E. S. (N. S.) 3d
Ser., c. 92, s. 37, is valid although not signed by a majority
of the judges. — The Queen v. Quinn, 1R. & G. (X. S.)
139.
An indictment charged that the prisoner did steal, take
and carry away, etc., without charging that it was done
feloniously. Before pleading the prisoner's counsel moved
to quash the indictment. After argument the presiding
judge allowed the indictment to be amended, under 32-33
V., c. 20, s. 32, by adding the word " feloniously.'' The
prisoner was found guilty upon the amended indictment.
Held, on a case reserved, that the indictment without
the word feloniously was bad and that it was not amend-
able under the said section. — The Queen v. Morrison, 2
P. <£ B. (X. B.) 682.
14:4. If any psrson, being arraigned upon any indictment for any
indictable offence, pleads thereto a plea of " not guilty," he shall, by
6uch plea, without an\ further form, be deemed to have put himself
upon the country for trial, and the court may, in the usual manner,
order a jury for the trial of such person accordingly. — 32-33 V., c 29,
s. 33.
This clause is taken from the Imperial Act, 7-8 Geo.
IV., c. 28, s. 1.
788 PROCEDURE ACT.
Formerly, after the prisoner had pleaded " not guilty,"
he was asked by the clerk : " How wilt thou be tried ? "
To have his trial, he had to answer, if a commoner, " By
Ood and the country ; " if a peer, "By God and my peers."
If he refused to answer, the indictment was taken pro
confesso, and he stood convicted. — 4 Blackstone, 341.
Plea of guilty allowed to be withdrawn. — R. v. Hud-
dell, 20 L. C. J. 301. See B. v. Brown, 1 Den. 291,
and cases there cited ; also, Kinloch's case, Fost. 16.
145. If any person, being arraigned upon any indictment for any
indictable offence, stands mute of malice, or will not answer directly
to the indictment, the court may order the proper officer to enter a
plea of" not guilty," on behalf of such person, and the plea so entered
shall have the same force and effect as if such person had actually
pleaded the same.— 32-33 V., c. 29, s. 34.
This clause is taken from the 7-8 Geo. IV, c. 28, sec. 2
of the Imperial statutes.
Formerly, to stand mute was to confess, and, if the
defendant stood mute of malice, he was immediately sen-
tenced.— 4 Blackstone, 324, 329. In the case of B. v.
Mercier, 1 Leach, 183, the prisoner being arraigned, stood
mute. The court ordered the sheriff to return a jury
instanter, to try whether the prisoner stood mute obstin-
ately, or by the visitation of God. A jury being accordingly
returned, the following oath was administered to them:
" You shall diligently enquire and true presentment make
for and on behalf of Our Sovereign Lord the King, whether
Francis Mercier, the now prisoner at the bar, being now
here indicted for the wilful murder of David Samuel
Mondrey, stands mute fraudulently, wilfully and obstin-
ately, or by the providence and act of God, according to
your evidence and knowledge." The jury examined the
witness in open court, and returned as their verdict that
PROCEDURE ACT. 789
the prisoner stood mute of malice, and not by the visitation
of God. "Whereupon the court immediately passed sen-
tence of death upon the prisoner, who was accordingly
executed on the Monday following.
A prisoner who had been previously tried and convicted,
but whose trial was deemed a nullity on account of some
informality in swearing the witnesses, was again arraigned
upon an indictment for the same offence, and refused to
plead, allegiug that he had been already tried. Littledale,
J., and Yaughan, B., ordered a plea of not guilty to be
entered for him under this section. — i2. v. Bitton, 6 C. &
P. 92.
A person deaf and dumb was to be tried for a felony ;
the judge ordered a jury to be empannelled to try whether
he was mute by the visitation of God; the jury found that
he was so; they were then sworn to try whether he was
able to plead, which they found in the affirmative, and the
defendant by a sign pleaded not guilty ; the judge then
ordered the jury to be empannelled to try whether the
defendant was now sane or not, and, on this question,
directed them to say whether the defendant had sufficient
intellect to understand the course of the proceedings to
make a proper defence, to challenge the jurors and com-
prehend the details of the evidence, and that, if they
thought he had not, they should find him of non-sane
mind.— R. v. Pritchard, 7 C. & P. 303.
It seems that where a prisoner who is called on to plead
remains mute, the court cannot hear evidence to prove
that he does so through malice, and then enter a plea of
not guilty under this section ; but a jury must be empan-
nelled to try the question of malice, and it is upon their
finding that the court is authorized to enter the plea. —
R. v. Israel, 2 Cox, 263.
790 PEOCEDTJEE ACT.
A prisoner, when called upon to plead to an indictment,
stood mute. A jury was empannelled and sworn to try
whether he was mute of malice or by the visitation of
God. A verdict of mute of malice having been returned,
the court ordered a plea of not guilty to be entered on the
record. — R. v. Schleter, 10 Cox, 409.
A collateral issue of this kind is always tried instanter
by a jury empannelled for that purpose. In fact, there is
properly speaking no issue upon it ; it is an inquest of
office. No peremptory challenges are allowed. — R. v.
Radcliffe, Fost. 36, 40. The jury may be chosen amongst
the jurors in attendance for the term of court, but must
be returned by the sheriff, on the spot, as a special panel.
— Dickenson's Quarter Sessions, 481. If the jury return
a verdict of " mute by the visitation of God," as where
the prisoner is deaf or dumb, or both, a plea of not guilty
is to be entered, and the trial is to proceed in the usual
way, but in so critical a case, great diligence and circum-
spection ought to be exercised by the court; all the pro-
ceedings against the prisoner must be examined with a
critical eye, and every possible assistance consistent with
the rules of law, given to him by the court. — R. v. Steel, 1
Leach, 451. In the case of R. v. Jones, note, 1 Leach,
452, the jury returned that the prisoner was " mute by
the visitation of God." It appearing that the prisoner,
who was deaf and dumb, could receive and communicate
information by certain signs, a person skilled in those
signs was sworn to act as interpreter and the trial then
proceeded.
It would seem that now, as whether the prisoner stands
mute of malice or by visitation of God, a plea of not
guilty is to be entered, the only reason why a jury must
be sworn to enquire whether the prisoner stands mute of
PROCEDURE ACT. 791
malice or not is to put the court in a position to know
how to act during the trial, as above stated in Steel's and
Jones' cases. — R. v. Berry, 13 Cox, 189.
By section 255 of the Procedure Act, see poet, it is
enacted that : " If any person indicted for any offence be
insane, and upon arraignment be so found by a jury
empannelled for that purpose, so that such person cannot
be tried upon such indictment, or if, upon the trial of any
person so indicted, such person appears to the jury charged
with the indictment to be insane, the court before whom
such person is brought to be arraigned, or is tried as afore-
said, may direct such finding to be recorded, and thereupon
may order such person to be kept in strict custody until
the pleasure of the Lieutenant Governor be known.
146. In any plea of autrefois convict or autrefois acquit it shall be
sufficient for any defendant to state that he has been lawfully convicted
or acquitted, as the case may be, of the offence charged in the indict-
ment.—32-33 V., c. 29, s. 35.
This clause is taken from the 14-15 V., c. 100, s. 23,
of the Imperial Statutes.
It is a sacred maxim of law that "nemo bis vea
debet pro eaclem causa," no man ought to be twice tried,
or brought into jeopardy of his life or liberty more thau
once, for the same offence.
" This section very properly," says Greaves, Lord
Campbell's Acts, 31, "abbreviates the form of pleas of
anti'ifois acquit and autrefois convict, and renders it
unnecessary to set forth the previous indictment, and to
make the many averments of identity, and so forth, which
were requisite before the passing of this statute."
These pleas are of the class called special pleas in bar.
The following is the form of a plea of autrefois acq
in answer to the whole of the indictment : —
792 PROCEDURE ACT.
And the said J. S., in his own proper person cometh
%nto court here, and having heard the said indictment
read, said, that our said Lady the Queen ought not
further to prosecute the said indictment against the said
J. S., because he saith that heretofore, to wit, at (describe
the court correctly) he, the said J. 8., was lawfully ac-
quitted of the said offence charged in the said indictment
and this, he, the said J. S., is ready to verify. Where-
fore he prays judgment, and that by the court here he
may be dismissed and discharged from the said premises
in the present indictment specified. — Archbold, 132.
It is not necessary that the plea should be written on
parchment; sec. 103 of the Procedure Act, ante.
If there is more than one count in the indictment it is
better to plead to each. — R. v. Westley, 11 Cox, 139.
The defendant may, at the same time, plead over to the
indictment, in felonies, by adding u and as to the felony
and larceny (as the case may be) of which the said J. S.
now stands indicted, he, the said J. S., saith that he is
not guilty thereof; and of this, he, the said J. $., puts
himself upon the country." If, however, the defendant
pleads autrefois acquit, without, at the same time, plead-
ing over to the felony, after his special plea is found
against him, he may still plead over to the felony. — Arch,
bold, 133. But it seems that in misdemeanors, if the
defendant pleads autrefois acquit or autrefois convict, and
the jury find against him on this issue, the verdict oper-
ates as a conviction of the offence, and nothing remains to
be done but to sentence the prisoner. — Archbold, 134;
1 Chit. 461, 463 ; 1 Bishop, Cr. Proc. 755, 809, 811,
812 , R. v. Bird, 2 Den. 94. As a consequence of this,
it has been held, in England, that, in misdemeanors, the
defendant cannot, even by separate pleas, at the same
PROCEDURE ACT. 793
time plead autrefois acquit or autrefois convict, and not
guilty. — R. v. Charlesworth, 9 Cox, 44; 1 2?. c£ S. 460.
See also R. v. Taylor, 3 B. & C. 502. Though in a later
case of misdemeanor a plea of not guilty seems to have
been put in with a plea of autrefois acquit. — R. v. Westley,
11 Cox, 139.
In felonies, the jury cannct be charged at the same
time with both issues, but must first determine the plea
of former acquittal. — 1 Chit. 460; R. v. Roche, 1
Leach, 134. The prisoner has the right of challenge in
the usual way ; 2 Hale, P. C. 267eZ ; R. v. Scott, 1
Leach, 401. See remarks, post, under sec. 163, as to
challenges. If the verdict is in favor of the prisoner, and
finds the plea proved, the prisoner is discharged, and the
trial is at an end. If, on the contrary, the jury find the
plea " not proved," they are charged again, this time to
inquire of the second issue, i.e., on the plea of not guilty,
and the trial proceeds as if no plea in bar had been
pleaded.— 1 Chit. 461; 2 Hale, 255; R. v. Knight,
L. & C. 378. They need not be sworn de novo to try
the second issue. — R. v. Key, 2 Den. 347. Formerly
when such pleas contained the first indictment, with
the judgment, etc., detailed at full length, the prosecutor
could demur to it, and then the court pronounced on that
demurrer, without the intervention of a jury ; but now,
with the general form allowed by the statute, the prose-
cutor meets the plea with a general replication, entered
only when the record is made up, after trial, though not
necessarily actually pleaded, and the issue must be deter-
mined by a jury. — See, however, R. v. Connell, 6 Cox,
178 ; Archbold, 133; Note by Greaves, 2 Russ. 62. See
form and proceedings, JR. v. Tancock, 13 Cox, 217.
This replication, and the similiter (as to which see sec
794 PROCEDURE ACT.
246, post,) when so entered upon the record, may be as
follows :
And hereupon A. B. , who prosecutes for our said Lady
the Queen in this behalf, says that by reason of any
thing in the said plea of the said J. S. above pleaded in
bar to the present indictment, our said Lady the Queen
ought not to be precluded from prosecuting the said
indictment against the said J. S., because he says that
the said J. 8. was not lawfully acquitted of the said
offence charged in the said indictment, in manner and
form as the said J. S. hath above in his said plea
alleged ; and this lie the said A. B. prays, may be
inquired of by the country. And the said J. 8. doth
the like.
For a form of plea of autrefois acquit or autrefois con-
vict to one count only of the indictment, see Lord
Campbell's Acts, by Greaves, 88, and R. v. Connell, 6
Cox, 178.
When a man is indicted for an offence and acquitted
he cannot afterwards be indicted for the same offence,
provided the first indictment were such that he could
have been lawfully convicted on it; and if he be thus
indicted a second time, he may plead autrefois acquit,
and it will be a good bar to the indictment. The true test
by which the question, whether such a plea is a sufficient
bar in any particular case may be tried, is whether the
evidence necessary to support the second indictment would
have been sufficient to procure a legal conviction upon the
first. — See R. v. Bulmer, post, under sec. 264 ; R. v.
Sheen, 2 C. & P. 634 ; R. v. Bird, 2 Den. 94; R. v.
Drury, 3(7. & K. 193. Thus an acquittal upon an indict-
ment for burglary and larceny may be pleaded to an
indictment for a larceny of the same goods, because upon
PROCEDUEE ACT. 795
the former indictment the defendant might have been
convicted of the larceny. But if the first indictment were
for a burglary, with intent to commit a larceny, and did
not charge an actual larceny, an acquittal on it would not
be a bar to a subsequent indictment for the larceny. — 2
Hale, 245 ; R. v. Vandercomb, 2 Leach, 716; because the
defendant could not have been convicted of the larceny
on the first indictment. An acquittal upon an indictment
for murder may be pleaded in bar of another indictment
for manslaughter, because the defendant could be convicted
of the manslaughter on the first indictment. So, an
acquittal upon an indictment for manslaughter is, it seems,
a bar to an indictment for murder, for they differ only in
degree. — 2 Hale, 246; 1 Chit. 455. But see R. v. Tan-
cock, 13 Cox, 217.
Now, also, no one can, after being acquitted on an indict-
ment for felony or misdemeanor, be indicted for an attempt
to commit it, for he might have been convicted of the
attempt on the previous indictment ; s. 183 post. But
this applies only to the common law misdemeanor of
attempting to commit a crime, for which section 183
allows a verdict, and not when the attempt to commit the
offence charged is by a special statutory enactment made
a felony. So, upon an indictment for the statutory
felony of administering poison with intent to murder,
a previous acquittal on an indictment for murder, founded
on the same facts, cannot be pleaded in bar. — R. v.
Connell, 6 Cox, 178. An acquittal for the murder of
a child is a bar to an indictment for concealing the birth
of the same child, because by sec. 188, post, the defendant
upon the first indictment might have been found guilty of
concealing the birth. — R. v. Ryland, note by Greaves, 2
Russ. 55.
796 PROCEDURE ACT.
So, a person acquitted of a felony including an assault,
and for which assault the defendant might have been con-
victed upon the trial for the felony, under sec. 191 of the
Procedure Act, cannot be subsequently indicted for this
assault.— R. v. Smith, 34 U. C. Q. B. 552.
So, also, a person, indicted and acquitted on an indict-
ment for a robbery, cannot afterwards be indicted for an
assault with intent to commit it ; s. 192, post. A person
indicted and tried for a misdemeanor, which upon the trial
appears to amount in law to a felony, cannot afterwards
be indicted for the felony ; the statute has the words " if
convicted," but, by the common law, this rule would
extend to a prisoner acquitted on trial, s. 184, post. A
person indicted and acquitted for embezzlement cannot
afterwards be indicted as for a larceny, or if tried and
acquitted for a larceny cannot afterwards be indicted as
for embezzlement upon evidence of the same facts, s. 195,
post. A person indicted for larceny and duly acquitted
cannot afterwards be indicted on the same facts for obtain-
ing by false pretences, and a person indicted for obtainin y
by false pretences and acquitted cannot afterwards be
prosecuted for larceny on the same facts. Sees. 196- 98,
post.
And the ruling in R. v. Henderson, 2 Moo. C. G. 192, as
cited in Archbold, p. 132, is not law here ; but a reference
to the report shows that there was no such ruling in that
case, as given in Archbold, and even admitting there had
been, it would not have been free from doubt, even in
England, where they have not the enactment contained in
sec. 198, post. — 2 Taylor, Ev. par. 1516 ; though see R.
v. Adams, 1 Den. 38.
If a man be indicted in any manner for receiving stolen
goods, he cannot afterwards be prosecuted again on the
PROCEDURE ACT. 797
same facts; sees. 199, 200, post. This rule is equally
applicable, though the first indictment be against the
defendant jointly with others, and the second against him
alone, and upon the first indictment the prisoner has been
acquitted, and the others found guilty, because he might
have been convicted on the first. — B. v. Dann, 1 Moo.
C. C. 424. See B. v. O'Brien, 15 Cox, 29.
But the prisoner must have been put in jeopardy on the
first indictment. If by reason of some defect in the record,
either in the indictment, the place of trial, the process, or
the like, the defendant was not lawfully liable to suffer
judgment for the offence charged against him in the first
indictment, as it stood at the time of the verdict, he has
not been in jeopardy, in the sense which entitles him to
plead the former acquittal or conviction in bar of a subse-
quent indictment. — B. v. Drury, 3 C. & K. 190 ; B. v.
Green, Dears & B. 113; B. v. Gilrnore, 15 Cox, 85.
"In general," says Starkie, Cr. PI. 320, "where the
original indictment is insufficient, no acquittal founded
upon that insufficiency can be available, because the defen-
dant's life was never really placed in jeopardy, and there-
fore the reason for allowing the plea entirely fails."
And Chit. 1 Or. L. 454, says: "And hence we may
observe that the great general rule upon this part of the
subject is, that the previous indictment must have been
one upon which the defendant could legally have been
convicted, upon which his life or liberty was not merely in
imaginary but in actual danger, and consequently in which
there was no material error Upon the same principle,
where the defendant was acquitted merely on some error of
indictment, or variance in the recitals, he may be indicted
again upon the same charge, for the first proceedings were
merely nugatory. Thus, if an indictment for larceny lay
798 PROCEDURE ACT.
the property in the goods in the wrong person, the party
may be acquitted, and afterwards tried on another, stating
it to be the property of the legal owner."
And even now, that an amendment is allowed in such a
case, and that the court, on the first indictment, might
have substituted the name of the legal owner for the
wrong one first alleged, if the indictment was not, in fact,
so amended, the plea of autrefois acquit cannot be
sustained ; the indictment must be considered as it was,
not as it might have been made ; the court was not bound
to amend, and the indictment to be considered is the
indictment upon which the jury in the first case gave their
verdict. — R. v. Green, Dears. & B. 113.
An abortive trial without verdict cannot be pleaded as
an acquittal ; the acquittal, in order to be a bar, must be
by verdict on a trial. Thus, if after the jury are sworn,
and the prisoner given in charge to them, the judge, in
order to prevent a failure of justice by a refusal of a witness
to give his evidence, or by reason of the non-agreement of
the jury to a verdict, or by reason of the death or such
illness of a juryman as to necessitate the discharge of the
jury before verdict, does so discharge them without coming
to a verdict, in all these and analogous cases the prisoner
must be tried again. — R. v. Winsor, 10 Cox, 276 ; 7 B. &
S. 490 ; R. v. Charlesworth 1 B. & S., 460 ; 1 Burn,
348; 2 Russ. 62, note by Greaves; R. v. Ward, 10 Cox,
573.
A previous summary conviction for an assault is not
a bar to an indictment for manslaughter of the party
assaulted, dead since, founded upon the same facts. — R. v.
Morris, 10 Cox, 480.
A person was acquitted of an assault with intent to
murder, but was convicted of an assault with intent to do
PROCEDURE ACT. 79 9
grievous bodily harm, and the prosecutor, having subse-
quently died, he was indicted for murder, and it was held
right. — R. v. Salvi, 10 Cox, 481, note.
And these two cases cannot be questioned. There can
never be the crime of murder till the party assaulted dies :
the crime has no existence, in fact or law, till the death
of the party assaulted. Therefore, it cannot be said that
one is tried for the same crime when he is tried for assault
during the life, and tried for murder after the death, of the
injured party. That new element of the injured person's
death is not merely a supervening aggravation, but it
creates a new crime ; per Lord Ardmillan, in Stewart's
Case (Scotland), cited in 1 Bishop, Cr. L. 1059.
A man steals twenty pigs at the same time, can he be
charged with twenty larcenies of one pig, in twenty diffe-
rent indictments ? After verdict on the first indictment,
can he maintain a plea of autrefois acquit or autrefois
convict in answer to the subsequent indictments ?
It may be said that, in principle, a man who steals
twenty pigs, at the same time, commits but one larceny,
but one criminal act. Suppose a man steals a bag containing
three bushels of potatoes, could he be charged with three
larcenies of one bushel each, in three different indictments,
or with two larcenies in two indictments, one of the
bag, and one of the potatoes ? Or if a man steals ten
pounds in ten one pound notes, can he be charged in ten
different indictments with ten different larcenies of one
pound \
Then A,, at one shot, murders B. and C, though the shot
was directed at B. only ; has he committed one murder or
two murders ? If he is tried for the murder of B. and
acquitted, can he plead autrefois acquit to an indictment
800 PROCEDURE ACT.
charging him with the murder of C. ? Of course not. He
is guilty of two murders.
In all these cases there has been only one criminal act,
only one actual execution of a criminal design, only one
guilty impulse of the mind ; yet it appears to be settled that
where several chattels are stolen at the same time, an
acquittal on an indictment for stealing one of them is no
bar to an indictment for stealing another of them, although
it appear that both were taken by the same act. — 8th Rep,
Cr. L. Comm., 5th July, 1845.
" And thus it hath happened," says Hale, V. 2, p. 245,
" that a man acquitted for stealing the horse hath yet been
arraigned and convict for stealing the saddle, though both
were done at the same time.'' And in R. v. Brettel, C. &
M. 609 ; 2 Russ. 60, it was held that where the prisoner
had been convicted of stealing one pig, he might be tried
for stealing another pig at the same time and place ; but
as the prisoner was undergoing his sentence upon the con-
viction already given against him, the Judge (Cresswell, J.)
thought that the second indictment should be abandoned,
and this was done.
Erie, J., in R. v. Bond, 1 Den. 517, seemed to be of opi-
nion that one act of taking could not be two distinct crimes.
He said : " I do not think it necessary in a plea of autre-
fois convict, to allege the identity of the specific chattel
charged to be taken (under the old form of such pleas).
Suppose the first charge to be taking a coat ; the second, to
be taking a pocket-book ; autrefois convict pleaded ; parol
evidence showing that the pocket-book was in the pocket
of the coat. I think that I would support the plea because
it would show a previous conviction for the same act of
taking.''
PROCEDURE ACT. 801
But a note by Greaves, 2 Russ. 60, thinks this dictum
erroneous, and the reporter, in Denison, in a foot note to the
case, says : " Quazre, whether a plea of autrefois acquit or
con >:ict would be supported by mere proof of the same act of
taking ? Suppose a purse stolen containing ten sovereigns,
five belonging to A., five to B. Two indictments preferred
one charging prisoner with a theft from A., the other with
a theft from B. ; a conviction of the theft from A. If the
same act of taking were the gist of the crime, he could
plead autrefois convict to the indictment of stealing from
B. It seems that, to support a plea of autrefois convict
or acquit, there must be proof of 'a taking of the same
thing from the same party at the same time.' "
If, according to tins note, in the case where ten sovereigns
are stolen at one and the same time, in the same purse,
five belonging to A., five to B., two crimes have been com-
mitted by one act, it follows that in che case of the stealing
of a bag containing potatoes, if the bag belongs to A., and
the potatoes to B., two larcenies may be charged, one for
the bag and one for the potatoes.
The proof, on a plea of this nature, lies on the defendant,
and he is to begin. — Archbold, 133 ; 2 Russ. 62, note by
Grea ves.
In order to prove a former acquittal or conviction, if it
took place at a previous assizes or in a different court, the
prisoner must produce the record regularly drawn up. —
R. v. Bowman, 6 C. <fc P. 101, 337. But if it took place
at the same assizes, the original indictment, with the notes
of the clerk of the court upon it, are sufficient evidence. —
R. v. Lea, 2 Moo. C. C. 9 (called R. v. Parry, in 7 G.
& P. 836).
But see sees. 230 and 244, post, as to proof of a con-
viction or acquittal.
BBB
802 PROCEDURE ACT.
When the verdict is quashed for informalities, or any
other grounds than the real merits of the case, the entry
on the record should state it in these words, " and because
it appears that the said indictment is not sufficient (or as
the case may be), therefore it is considered and adjudged
that the defendant go thereof without day," so as to pre-
vent a plea of "autrefois acquit." — 1 Chit. 719.
Semble. — That a prisoner convicted for manslaughter
might be tried again for murder upon the same facts. JR.
v. Tancock, 13 Cox, 217.
Greaves' N.SS. note. — "The next question is, supposing the judges
of 0. C.R. were to hold that evidence had been improperly received
or rejected, and simply determined to arrest or reverse the judgment,
could the prisoner be indicted de novo, and tried and convicted for
the same offence? And it is perfectly clear that he could. Nothing,
except a verdict of guilty or not guilty on a valid indictment, and
a lawful and still existing judgment on such verdict can afford a bar
to another prosecution for the very same offence. See my note,
2 Russ. C. & M, 69 et seq. R. v. Winsor, 6 B & S., 143-7-490. 2
Hale, 246. Vaux's Case, 4 Rep. 44.
I have said on a valid indictment. Now an indictment may be
either actually valid or valid as against the crown in some cases ; for
a very material distinction exists between an acquittal and conviction
upon a bad indictment. If autrefois acquit be pleaded and the former
indictment is bad upon the face of it, the plea fails, because the
judgment may and is to be supposed to have been upon that defect,
as it is simply quod eat sine die (3 Inst. 214, 2 Hale, 248, 894). But
if a prisoner be convicted and sentenced on an insufficient indictment
a plea of autrefois convict will be good unless the judgment has been
reversed (2 Hale, 247), for the judgment could only be given on the
verdict. So if a special verdict be found, and the court erroneously,
adjudges it to be no felony, autrefois acquit is a good plea as long as
that judgment is unreversed on error (2 Hale, 246). And in the case
of an acquittal, if the judgment has been quod eat hide quietus ; a8
the ancient form is in case of acquittal upon not guilty pleaded, that
could never refer to the defect of the indictment, but to the very-
matter of the verdict, and the prisoner could not be indicted again
until the judgment had been reversed on error (2 Hale, 394).
PROCEDURE ACT. 803
A strange misapprehension has prevailed in Ireland lately, that a
writ of error in a criminal case could not be brought on the part of
the crown. There really is not a doubt about it, as it is not only
assume*! that it may, but relied upon as a ground for decisions in 2
Hale, 246, 247, 248, 394. 395; 3 Inst. 214; where Lord Coke gives
the reason why error must he brought by the crown where there i~ au
erroneous judgment of condemnation ; and Vaux's Case, 4 Rep. 45.
I entertain very considerable doubt whether all writs of error are
not the writs of the crown, and that that is the true ground why the
A. G's consent is necessary to obtain them for a prisoner. Where a
judgment is arrested or reversed under the court of crown cases
reserved act, it would appear on the face of the record that there was
neither a judgment of acquittal nor of conviction.
Whenever a plea of autrefois acquit or convict in the short form
allowed by the 14-15 V., c. 100, s. 2s. is pleaded, if the former indict-
ment, or other part of the record be bad on the face of it, the question
arises whether the replication should not set out the record and
conclude with a demurrer. If the objection was the only answer to
the plea, it would seem to be the better course. A jury n,
such a case err, as they certainly did in JR. v. Lea, 2 Moo. C. C. 9,
where, against the direction of the judge, and without any reasonable
evi ience. they found for the prisoners, and it was held that the
could not be set aside- A judge might also decide erroneously against
the crown ; and, if a verdict passed for the prisoner, there would be
great doubt whether any remedy existed. A case could not be reserved
under the act, for there would not be any conviction, and error would
not be available, for the former record could not appear on the sub-
sequent record, and there is grave doubt as to a special verdict in
such a case. But if judgment were given against the crown on such
a replication as I have suggested, error might remedy the mischief."
147. No plea setting forth any attainder shall be pleaded in bar of
any indictment, unless the attainder is for the same offence as that
charged in the indictment.— 32-33 V., c 29, s. 36. 7-8 Geo. 4, c. 28,
s. 4, Imp.
Attainder is the stain or corruption of the blood of a
criminal capitally condemned ; it is the immediate, insep-
arable consequence, by the common law, of the sentence
of death, or of outlawry for a capital offence. Upon the
sentence of death or the judgment of outlawry being
804 PROCEDURE ACT.
pronounced, the prisoner is attaint, attinctus, stained or
blackened. He is no longer of any credit or reputation ;
he cannot be a witness in any court (but see now sec.
214 of the Procedure Act, post), neither is he capable of
performing the functions of any other man, for, by anti-
cipation of his punishment, he is already dead in law,
civiliter mortuus. The consequences of attainder are for-
feiture and corruption of blood, 4 Blackstone, 380. And
at common law, if a man is attainted, he may plead such
attainder in bar to any subsequent indictment for the
same or any other felony. And this because such pro-
ceeding on a second indictment cannot be to any purpose,
for the prisoner is dead in law by the first attainder, his
blood is already corrupted, and he has forfeited what he
had ; so that it is absurd and superfluous to endeavour to
attaint him a second time. — 4 Blackstone, 336. But now,
by the above clause, attainder is no bar, unless for the
same offence as that charged in the indictment, and in
effect the plea of autrefois attaint is at an end.
See, post, sees. 36, 37, c. 181, limiting the effects of
attainder.
In England, now, by the 33-34 V., c. 23, all attain-
ders, corruption of blood, or forfeiture of property are
abolished.
LIBEL.
For sees. 148, 149, 150, 151, 152, 153, 154, see ante,
under c. 163. " An act concerning Libel," p. 227.
CORPORATIONS.
15o. Every corporation against which a bill of indictment for a
misdemeanor is found, at any court having criminal jurisdiction, shall
appear by attorney in the court in which such indictment is found,
and plead or demur thereto. — 46 V., c. 34, s. 1.
PROCEDURE ACT. 805
156. No writ of certiorari shall be necessary to remove any such
indictment into any superior court with the view of compelling the
defendant to plead thereto; nor shall it be necessary to issue any writ
of distringas, or other process, to compel the defendant to appear and
plead to such indictment. — 46 V., c- 34, s. 2.
157. The prosecutor, when any such indictment is found against
any corporation, or the clerk of the court, when such indictment is
founded on a presentment of the grand jury, may cause a notice
thereof to be served on the mayor or chief officer of such corporation,
or upon the clerk or secretary thereof, stating the nature and purport
of such indictment, and that, unless such corporation appears and
pleads thereto in two days after the service of such notice, a plea of
not guilty will be entered thereto for the defendant by the court, and
that the trial thereof will be proceeded with in like manner as if the
said corporation had appeared and pleaded thereto. — 46 V., c. 34, s. 3.
158. If such corporation does not appear, in the court in which
the indictment has been found, and plead or demur thereto within
the time specified in the said notice, the judge presiding at such court
may, on proof to him by affidavit of the due service of such notice
order the clerk or proper officer of the court to enter a plea of " not
guilty" on behalf of such corporation ; and such plea shall have the
same force and effect a3 if such corporation had appeared by its
attorney and pleaded such plea. — 46 Y., c. 34, s. 4.
159. The court may, whether such corporation appears and
pleads to the indictment, or whether a plea of " not guilty " is entered
by order of the court, proceed with the trial of the indictment in the
absence of the defendant, in the same manner as if the corporation
had appeared at the trial and defended the same ; and, in case of
conviction, may award such judgment and take such other and sub-
sequent proceedings to enforce the same as are applicable to convictions
against corporations. — 46 Y., c. 34, s. 5.
JURIES AND CHALLENGES.
160. Every person qualified and summoned as a grand juror or
as a petit juror, according to the laws in force for the time being in
any province of Canada, shall be and shall beheld to be duly qualified
to serve as such grand or petit juror in criminal cases in that province,
whether such laws were in force or were or are enacted by the Legis-
lature of the Province before or after such province became a part of
Canada, but subject always to any provision in any act of the Parlia-
ment of Canada, and in so far as such laws are not inconsistent with
any such act.— 32-33 V., c. 29, s. 44. 46 V., c 10, s. 3.
806 f>ROCEDUKE ACT.
The Jurors and Juries acts of Ontario and Quebec, and
sec. 160 of the Dominion Criminal Law Procedure act,
are constitutional. — R. v. Provost, M. L.R., 1 Q. B. 477;
R. v. Bradshaw, 38 U. C. Q. B. 564; R. v. O'Rourke, 1
0. R. 464.
The defendant in a criminal case has no right to a com-
munication of the petit jury list. — R. v. Maguire, 13 Q.
L. R. 99.
161. No alien shall be entitled to be tried by a jury de medietate
Ungues, but shall be tried as if he was a natural born subject. — 32-33
V., c. 29, s. 39. 44 F., c. 13, s. 8.
Ever since the 28 Ed. Ill, c. 13, aliens, under our
criminal law, have been entitled to be tried by a jury
composed of one half of citizens and one-half of aliens or
foreigners, if so many of these could be had. It seems to
have been thought necessary, in R. v. Vonhoff, 10 L. C.
J. 292, that these six aliens should be natives of the coun-
try to which the defendant alleged himself to belong, but
the better opinion seemed to be that six aliens were
required, without regard to what nationality they were of.
Sec. 2 of 28 Ed. Ill, c. 13, says " the other half of aliens."
However, this is now of historical interest only, and by
the above clause aliens, all through the Dominion when
indicted before a criminal court are on the same footing
as British subjects, as to the composition of the jury.
In England also now, an alien is not entitled to a j ury
de medietate Ungues. — 33F., c. 14, Imp.
162. Any quaker or other person allowed by law to affirm instead
of swearing in civil cases, or solemnly declaring that the taking of any
oath is, according to his religious belief, unlawful, who is summoned
as a grand or petit juror in any criminal case, shall, instead of being
sworn in the usual form, be permitted to make a solemn iiffirmation
beginning with the words following: " I, A. B.,do solemnly, sincerely
and truly affirm," and then may serve as a juror as if he had been
PBOCEDUEE ACT. 807
sworn, and his declaration or affirmation shall have the same effect
as an oatii to the like effect ; and in any record or proceeding relating
to the case, it may be stated that the jurors were sworn or affirmed;
and in any indictment, the words " upon their oath present " shall be
understood to include the affirmation of any juror affirming instead of
8» earing. — 32-33 V., c. 29, s. 43.
This clause extends to jurors the provisious of sec. 219
(see post), allowing to witnesses, in certain cases, to make
an affirmation instead of an oath. In England, a similar
enactment is contained in 30-31 V., c. 35, s. 8.
163. If any person arraigned for treason or felony challenges
peremptorily a greater number of persons returned to be of the jury
than twenty, in a case of indictment for treason or felony punishable
with death, or twelve in a case of indictment for any other felony, or
four, in a case of indictment for misdemeanor, every peremptory chal-
lenge beyond the number so allowed in the said cases respectively -diall
be void.and the trial of such person shall proceed as if no such challenge
had boen made ; but nothing herein contained shall be construed to
prevent the challenge of any number of jurors for cause. — 32-33 V^
c. 29, •?. 37.
The Imperial Act, 7-8 Geo. IV., c. 28, s. 3, also enacts
that every peremptory challenge beyond the number
allowed by law is void.
In England, thirty-five peremptory challenges are allowed
in cases of high treason, twenty in all felonies, and none
in misdemeanors. Sec. 163 of our Procedure Act, ante,
applies only to treason felony not to high treason.
By the common law, if the prisoner challenged peremp-
torily more of the jury than he was allowed, this was
deemed a refusal to be tried, and, therefore, the prisoner, if
he would not retract his illegal challenge, stood convicted,
at in cases where he refused to plead. And, even after
the 22 Hen. VIII., c. 14, had enacted that " no person
arraigned for felony can be admitted to make any more
than twenty peremptory challenges," it was doubtful
808 PROCEDURE ACT.
whether, if the prisoner challenged twenty-one, he was to
stand convicted without trial, or if the trial was to pro-
ceed the illegal challenge being disregarded and overruled.
— 4 BlacJcstone, 354. This explains the phraseology of
the above clause, which, to remove all doubts, had to, and
does provide for the consequences of a peremptory chal-
lenge over the number allowed, at the same time as it
enacts what is the number allowed in all cases.
There are two kinds of challenges, the one to the array
and the other to the polls.
A challenge to the array is an exception to the whole
panel of jurors returned, and must be made before the
swearing of any of the jury is commenced; a challenge to
the array must be made in writing.
The ground of the challenge may be either that some
fact exists inconsistent with the impartiality of the sheriff,
or other officer returning the panel, or that some fact
exists which makes it improbable that he should be
impartial, or that some fact exists which, does, in fact,
interfere with his impartiality.
The challenge must be in writing, and must set forth
the fact on which it is grounded. The court must decide
whether the alleged fact is in itself a good cause of chal-
lenge, in which case it is called a principal challenge, or
whether it is merely a fact from which partiality may or
may not be inferred, in which case it is called a challenge
to the favor, or that the sheriff has been guilty of some
default in returning the panel.
If the court holds that the alleged fact is a good cause
for a principal challenge, and the alleged fact is denied, or
if the court holds that the alleged fact is good as a
challenge to the favor, and either the fact or the partiality
sought to be inferred from it, or both, are denied, two
PROCEDURE ACT. 809
triers must be appointed by the court to try the facts in
dispute.
If the triers find in favor of the challenge, the panel
is quashed, and a new one is ordered to be returned by the
coroners or other officers. If they find against the chal-
lenge the panel is affirmed. — Stephens' Or. Proc. Art.
280.
Held, in an indictment against K. M. that it was ground
of principal challenge to the array that the prisoner's
husband had an action pending against the sheriff for an
assault committed on the prisoner. — The Queen v. Rose
Milne, 4 P. & B. (N. B.) 394.
A challenge to the polls is an exception to some one or
more individual juror or jurors. It may be made orally.
After issue joined between the crown and the prisoner,
when the jury is called and before they are sworn, is the
only time when the right of challenge can be exercised. —
R. v. Key, 2 Ben. 347 ; R. v. Shuttleivorth, 2 Den. 351.
In R. v. Giorgetti, 4 F. <£ F. 546, it was held that the
challenge must be made before the book is given into the
hands of the juror, and before the officer has recited the
oath, and it comes too late afterwards, though made before
the juror has kissed the book. In R. v. Frost, 9 C. & P.
136, it was held that the challenge of a juror, either by
the crown or by the prisoner, must be before the oath is
commenced. The moment the oath has begun it is too late.
The oath is begun by the juror taking the book, having
been directed by the officer of the court to do so. But if
the juror takes the book without authority, neither party
wishing to challenge is to be prejudiced thereby. But a
juror may be challenged even after being sworn if the
prosecutor consents. — Bacon's Abr. Verb. Juries, 11 ;
1 Chit. 545; R. v. Mellor, Dears. & B. 494, per Wight-
man, J.
810 PROCEDURE ACT.
It is obvious that each juror must be sworn separately,
in misdemeanors as well as in felonies, when peremptory
challenges are allowed in misdemeanors.
The accused is to be informed before the swearing of
the jurors, that if he will challenge them or any of them,
he must challenge them as they come to the book to be
sworn and before they are sworn ; the following is the
usual form : " Prisoner, these good men, whose names
you shall now hear called, are the jurors who are to pass
between our Sovereign Lady the Queen and you upon
your trial (in a capital case, upon your life and death) ;
if, therefore, you would challenge them or any of them,
you must challenge them as they come to the book to be
sworn, and before they are sworn, and you shall be heard."
— 1 Chit. 531.
The accused must make all his challenges in person,
even in cases where he has counsel. — 1 Chit. 546 ; 2
Hawkins, 570.
To enable the accused to make his challenges, he is
entitled to have the whole panel read over, in order that
he may see who they are that appear. — 2 Hawkins, 570 ;
Townly's case, Fost. 7.
A challenge to the polls is either peremptory or for
cause ; a peremptory challenge is such as is allowed to be
made to a juror without assigning any cause; the number
of these challenges allowed in each particular case is settled
by sees. 163 and 164 of the Procedure Act.
Peremptory challenges are not allowed upon any colla-
teral issue. — R. v. Ratcliffe, Fost. 40; Barkstead's case,
Kelyng's C. C, Stevens & Haynes reprint, 16 ; Johnsons*
case, Fost. 46 ; R. v. Paxton, 10 L. C. J. 213.
Hale, 2 P. C, 2Q7d, says that no peremptory challenges
are allowed to the defendant " if he had pleaded any foreign
PROCEDURE AOT. 811
plea in bar or in abatement, which went not to the trial of
the felony, but of some collateral matter only." And it is
added, in Bacon's Arb. Verb. Juries, 9, that "this peremp-
tory challenge seems by the better opinion to be only
allowable when the prisoner pleads the general issue."
This would seem to take away the right of peremptorily
challenging on the trial of pleas of "autrefois atqu.it" or
" autrefois convict." But it is not so ; the issue on a plea
of thi3 kind is not a collateral issue. And it is said in 2
Hah, loc. tit., that if a man plead not guilty, or plead any
other matter of fact tillable by the same jury, and plead
over to the felony, he has his peremptory challenges. By
collateral issues, must be understood, for instance, where a
criminal convict pleads any matter allowed by law in bar
of execution, as pregnancy, pardon, an act of grace, or, as
in Ratclife's case, above cited, when a person brought to
the bar to receive his sentence says that he is not the
same person that was convicted ; the issues in these cases
being always tried by a jury instanter.
Where several persons are tried by the same jury, each
of such persons has a right to his full number of peremp-
tory challenges in all cases where the right of peremptory
challenge exists ; and if twenty men were indicted for the
same offence by one indictment, yet every prisoner should
be allowed his full number of peremptory challenges. They
may join in their challenges, if they wish to be tried together,
and then they can only challenge amongst them to the
number allowed to one. But if they refuse to do so, the
crown has the right of trying each, or any number of them
less than the whole, separately from the others, in order to
prevent the delay which might arise from the whole panel
being exhausted by the challenges. — 1 Chit. 535.
So, in Charnock's case, 3 Salk. 80 (in many books
812 PKOCEDUKE ACT.
erroneously called Charwick,) three being indicted together,
Holt, C. J., told them "that each of them had liberty to
challenge thirty-five of those who were returned upon the
panel to try them, without showing any cause ; but that if
they intended to take this liberty, then they must be tried
separately and singly, as not joining in the challenges ; but,
if they intended to join in the challenges, then they could
challenge but thirty-five in the whole, and might be tried
jointly upon the same indictment; " accordingly, they all
three joined in their challenges and were tried together and
found guilty.
A challenge to the polls for cause is either principal or
for favor: it is allowed to both the prosecutor and the
defendant. — Archbold, 152.
It is said in Archbold, 156 : " The defendant in treason
or felony may, for cause shown, object to all or any of the
jurors called, after exhausting his peremptory challenges
of thirty-five or twenty." If this means that the prisoner
must first exhaust all his peremptory challenges, before
being allowed to challenge for cause, it is an error, and was
so held by the Court of Queen's Bench, in Ontario, in
R. v. Whelan, 28 U. G. Q. B. 2, confirmed by the Court of
Appeal, 28 U. C. Q. B. 108 ; in which case, it was unani-
mously held that the prisoner is entitled to challenge
for cause before exhausting his peremptory challenges,
Richards, C. J., concurring, though he had at first at the
trial, on Archbold' s passage above cited, ruled that the
prisoner, before being allowed to challenge for cause, must
first have exhausted his peremptory challenges.
If the prosecutor or the defendant have several causes of
challenge against a juror, he must take them all at the
same time; Bacon's Abr, Verb, juries, 11; 1 Chit. 545.
If a juror be challenged for cause and found to be indif-
PROCEDURE ACT. ■ 813
ferent he may afterwards be challenged peremptorily, if
the number if his peremptory challenges is not exhausted.
—1 Chit. 545 ; R. v. Geach, 9 C & P. 499.
The most important causes of a principal challenge to
the polls are : 1. Propter defectum, on account of some
personal objection, as alienage, minority, old age, insanity,
present state of drunkenness, deafness, or a want of the
property qualifications required by law. 2. Propter affec-
tum, on the ground of some presumed or actual partiality
in the juror, who is objected to; as if he be of affinity to
either party, or in his employment, or is interested in the
event, or if he has eaten or drunk at the expense of one of
the parties, if the juror has expressed his wishes as to the
result of the trial, or his opinion of the guilt or innocence
of the defendant, also if he was one of the grand jurors who
found the indictment upon which the prisoner is then
arraigned, or any other indictment against him on the
same facts. 3. Propter delictum, on the ground of infamy
as where the juror has been convicted of treason, felony,
perjury, conspiracy, or any other infamous offence.
A challenge to the polls for favor is founded on the
allegation of facts not sufficient in themselves to warrant
the court in inferring undue influence or prejudice, but
sufficient to raise suspicion thereof, and to warrant inquiry
whether such influence or prejudice in fact exists. The
cases of such a challenge are manifestly numerous, and
dependent on a variety of circumstances, for the question
to be tried is whether the juryman is altogether indifferent
as he stands unsworn. If a juror has been entertained in
the party's house, or if they are fellow- servants, are cited
as instances of facts upon which a challenge for favor
may be taken. — 1 Chit. 544.
In the case of a principal challenge to the polls the
814 PROCEDURE ACT.
court, without triers, examines either the juror challenged,
or any witness or evidence then offered, to ascertain the
truth of the fact alleged as a ground of challenge, if this
fact is not admitted by the adverse party; and if the
ground is made out to the satisfaction of the court, the
challenge is at once allowed, and the juror set aside ; 5th
Cr. Law. Comm. Report, 1849, p. 122. In these cases,
the necessary conclusion in law of the fact alleged against
the juror is that he is not indifferent, and this, as a matter
of law, must be decided by the court.
But in the case of a challenge for favor, the matter of
challenge is left to the discretion of triers. In this case,
the grounds of such challenge are not such that the law
necessarily infers partiality therefrom, as, for instance,
relationship ; but are reasonable grounds to suspect that
the juror will act under some undue influence or prejudice.
The oath taken by the triers is as follows : "You shall
well and truly try ivhether A. B., one of the jurors, stands
indifferent to try the prisoner at the bar, and a true ver-
dict give according to the evidence. So help you God."
No challenge of triers is admissible. — 1 Chit. 549.
The oath to be administered to the witnesses brought
before the triers is as follows :
" The evidence which you shall give to the court and
triers ur>on this inquest shall be the truth, the whole truth,
aud nothing but the truth. So help you God."
If this challenge is made to the first juror, and, before any
one has been sworn, then the court will direct two indifferent
persons, not returned of the jury, to act as triers ; if they
find against the challenge, the juror will be sworn, and be
joined with the triers in determining the next challenges.
But as soon as two jurors have been found indifferent
and have been sworn, then the office of the first two triers
PROCEDURE ACT. 815
ceases, and every subsequent challenge is referred to the
decision of the two first jurors sworn : 3 Blackdone, 363.
If the first challenge is made after more than two of the
jurors are sworn, then the court may assign any two of the
jurors sworn to try the challenges. If the challenge is
made when there is yet only one juror sworn, one trier is
chosen by each party, and added to the juryman sworn,
and the three, together, try the challenges, till a second
juror is sworn. — 1 Chit. 5-19; Bacon's Abr. Verb, Juries,
E.U; 2 Hale, 274.
The trial then proceeds by witnesses before the triers,
in open court; the juror objected to may also be examined,
having first been sworn as follows :
" You shall true answer make to all such questions as
the court shall demand of you. So help you God."
The challenging party first addresses the triers, and calls
his witnesses ; then the opposite party addresses them, and
calls witnesses if he sees fit, in which case the challenger
has a reply. But in practice there are no addresses in
such cases. The judge sums up to the triers, who then
say if the juror challenged stands indifferent or not : this
verdict is final : Roscoe, 197,198. But a juror challenged
on one side and found to be indifferent may still be chal-
lenged by the other. — 1 Chit. 545.
Bishop says, 1 Cr. Proc. 905 : " It is plain that the
line which separates the challenge for principal cause
and the challenge to the favor must be either very artifi-
cial, or very uncertain."
And Wfiarton, 3 Cr. L. 3125, says: "The distinction,
however, between challenges for favor and those for
principal cause is so fine, that it is practically disre-
garded."
The following case was brought before the Court of
816 PROCEDURE ACT.
Criminal Appeal, in England, in 1858. — B. v. Mellor,
Bears. & B. 468. — On a trial for murder, the panel of
petit jurors returned by the sheriff contained the names of
two persons, — Joseph Henry Thome and William Thor-
niley. The name of Joseph Henry Thome was called
from the panel as one of the j ury to try the case of Aaron
Mellor ; and Joseph Henry Thome, as was supposed,
went into the box and was duly sworn as Joseph Henry
Thome without challenge or objection. It was, however,
discovered the next day, and after the prisoner had been
convicted, that William Thomiley had, by mistake,
answered to the name of Joseph Henry Thome, when
this one was called, and had gone into the box and been
sworn as Joseph Henry Thome, the prisoner having beeii
offered his challenge when the person called Joseph Henry
Thome, but who was really William Thomiley, came to
the book to be sworn. Upon being informed of these
facts, the judge who had presided at the trial respited the
execution of the sentence, and reserved the case for the
consideration of the Court of Criminal Appeal. It was
held in this court, by Lord Campbell, C. J., Cockburn, C.
J., Coleridge, J., Wightman, J., Martin, B., and Watson,
B. (six), that there had been a mis-trial ; by Erie, Cromp-
ton, Crowder, Willes and Byles, J. J., and Channell, B.
(six), that this was not a mis-trial, but only ground of
challenge ; and by Pollock, C. B., and Williams, J., that
this was not a question of law arising at the trial, which
could have been reserved for the Court of Criminal
Appeal, The conviction was therefore affirmed by eight
against six. But the report shows clearly that upon a
writ of error the conviction would have been quashed.
And it was undoubtedly illegal; the challenge is to the
person called, not to the person who appears. When
PROCEDURE ACT. 817
addressed by the clerk of the court, as the jurors were to
be called, the prisoner has been told, ■ These good men
that you shall noiv hear call-ed are the jurors who are to
pass between our Sovereign Lady the Queen and you
upon your trial ; if, therefore, you would challenge them,
or any of them (£. e., that are called), you must challenge
them as they come to the book to be sworn, and before
they are sworn, and you shall be heard." Of course, this
address supposes that the person who comes to be sworn
is the person called. But that very supposition demons-
trates clearly that if the contrary takes place it is a cause
of absolute nullity. When Joseph Henry Thome was
called, the prisoner shut his ejes, and felt confident that
Joseph Henry Thome would be sworn as one of the
jurors who were to try him. Why should he have chal-
lenged ? He did not desire to challenge Joseph Henry
Thome. And supposing he desired to challenge him for
cause, it is clear that it is cause of challenge against
■It Henry Thome that he would have brought for-
ward, not those against William Thomiley. And then,
suppose again, he had challenged when Joseph II
Thome was called, would not the entry on the record have
been that Joseph Henry Thome had been challenged ?
Who would think of an entry that " Joseph Henry Thome,
etc., being called, etc., William Thomiley was chal-
lenged ? " Upon this challenge to Joseph Henry Thome's
name, W ill iam Thomiley would have withdrawn ; then,
if Will iam Thomilei/s name had been later called, would
not the prisoner have had to challenge him, if he objected
to him ? Would he not then have had to challenge twice
to get rid of one man? Would he not, then, have been
deprived of one of the peremptory challenges he was
entitled to ?
CCC
818 PROCEDURE ACT.
On a trial for forgery, the panel of petit jurors contained
the names of Bobert Grant and Robert Crane. Eobert
Grant as was supposed was called and went into the box.
After conviction, and before the jury left the box, it was
discovered that Robert Crane had by mistake answered to
the name of Robert Grant, and that Robert Crane was
really the person who had served on the jury. Held, a
mistrial.— R. v. Feore, 3 Q. L. R. 219.
The prisoner should challenge before the juror takes the
book in his hand, but the judge, in his discretion, may
allow the challenge afterwards before the oath is fully ad-
ministered.— R. v. Kerr, 3 L. N. 299. (This decision is
unsupported by authority.)
164. In all criminal trials, four jurors may be peremptorily chal-
lenged on the part of the crown; but this shall not be construed to
affect the right of the crown to cause any juror to stand aside until
the panel has been gone through, or to challenge any number of jurors
for cause.— 32-33 F., c. 29, s. 38.
165. The right of the crown to cause any juror to stand aside
until the panel has been gone through, shall not be exercised on the
trial of any indictment or information by a private prosecutor for the
publication of a defamatory libel. — 37 V., c. 38, s. 11.
At common law, the crown might, it seems, have chal-
lenged peremptorily any number of jurors, without alleging
any other reason than "quod non boni sunt pro rege." ,
But this power was taken away, in the year 1305, by 33
Ed. I. (re-enacted for England, by 6 Geo. IV., c. 50.)
An abuse had arisen in the administration of justice by
the crown assuming an unlimited right of challenging
jurors without assigning cause, whereby " inquests remained
untaken." In this way, the crown could in an arbitrary
manner, on every criminal trial, challenge so many of the
jurors returned on the panel by the sheriff that twelve did
PROCEDURE ACT. 819
not remain to form a jury, and the trial might be inde-
finitely postponed pro defect" juratoruui. To prevent the
trial going off for want of jurors by the peremptory chal-
lenges of the crown, this statute enacts that no peremptory
challenge by the crown can be allowed, so that the " inquest
remains untaken." The crown, however, is not bound to
show any cause of challenge, or for the order to " stand
aside," until the panel has been gone through, and it appears
that there will not be jurors enough to try the defendant,
if the peremptory challenges are allowed to prevail. And
the panel is not to be considered as being gone through for
this purpose, until it has been, not only once called over,
but exhausted (dpuisde is the word used in the French ver-
sion of the Procedure Act, (or gone through ;) that is, until
according to the usual practice of the court, and what may
reasonably be expected, the fact is ascertained that there
are no more jurors in tbe panel whose attendance may be
procured, and so that unless the crown be put to show its
cause of challenge, " the inquest would remain untaken."
— MdnseU v. R. (in error), Dears. & B. 375.
In that case, the panel contained fifty-four name? :
eighteen when called were peremptorily challenged by the
prisoner ; fifteen were, on the prayer of the counsel for the
crown, the prisoner's counsel objecting and praying that
cause of challenge should be shown, ordered to ■ stand by,"
and nine were elected and tried to be sworn. This left
twelve other persons only on the panel, and they were at
that time absent deliberating upon their verdict in another
case. The name of William Ironmonger, the first person
who, upon the prayer of the counsel from the crown, had
been ordered to stand by, was then again called, and the
counsel for the crown again prayed that he might be order-
ed to stand by, upon which the counsel for the prisoner
820 PKOCEDUEE ACT.
prayed that cause of challenge should be shown forthwith.
At that moment, and before any judgment was given on
this application, the twelve persons who sat as a jury in
the other case came into court and gave their verdict ; and
the counsel for the crown then prayed that William Iron-
monger should be ordered to stand by until such twelve
persons should be called, but the counsel for the prisoner
demanded that William Ironmonger should be sworn unless
cause of challenge to him were shown. The court ordered
that William Ironmonger should stand by, and three
persons, the number required to complete the jury, were
taken from the said twelve jurors, and elected and tried to
be sworn, although the prisoner's counsel objected that
such persons ought to be called in their proper order, with
other persons on the panel, and that Jacob Jacobs, the
person whose name stood in the panel immediately after
that of William Ironmonger, ought to be next called. Upon
a writ of error, it was held that, under the circumstances,
the panel was not gone through, so as to put the crown to
assign cause of challenge, until the twelve persons who
came into court before the complete formation of the jury
had been called, and that William Ironmonger was properly
ordered to " stand by" the second time ; also that the three
persons required to complete the jury were properly called
and taken from the said twelve, without again calling the
whole panel through in its order ; also, that " stand by "
merely means that the juror being challenged by the
crown, the consideration of the challenge shall be post-
poned till it be seen whether a full jury can be made with-
out him.
The case of R. v. Lacombe, 13 L. C. J. 259, was deci-
ded on the same principles, in Montreal, in 1869, by the
full Court of Queen's Bench upon a case reserved by Mr.
Justice Mackay, as follows :
PROCEDURE ACT. 821
" The prisoner was tried before me on the 3rd July,
1869 At the commencement of the trial, while the
petit jury were being formed, and the jurors called for
this trial, numbers of jurors were ordered to ' staud aside,'
on the prayer of the crown prosecutor. So many jurors had
been so made ' stand aside,' and so many had been chal-
lenged peremptorily by the prisoner, that before a complete
jury was formed the whole list was gone through once;
resort had then to be had to those who, just before, had
been made 'stand aside.' I ordered them to be called in
order. On the first of these, namely Adolpbe Masson, beiug
called, he answered, and was advancing to the jury box,
when he was ordered to ' stand aside ' by the crown prose-
cutor; the prisoner's counsel objected, insisting that
jon should be sworn, unless the crown had cause for
challenging him, and did then state sufficient cause. This
the crown refused to do. I ruled in favor of the crown,
and Masson was ordered to ' stand aside,' and he was not
sworn. Others were called afterwards, sworn, and the trial
proceeded " The prisoner was convicted, and the
Court of Queen's Bench maintained the conviction.
" However, it is held that the King need not assign his
cause of challenge till all the panel is gone through, and
18 there cannot be a full jury without the persons so
challenged. And then, and not sooner, the King's counsel
must shew his cause, otherwise the juror shall be sworn."
— 4 Black-stone, 353.
And it is said in 2 Hawkins, 569 :
" However, if the King challenge a juror before a panel
is perused, it is agreed that he need not show any cause of
his challenge till the whole panel be gone through, and it
appear that there will not be a full jury without the person
so challenged." See also Bacon's Abr. Verb. " Juries"
E. 10.
822 PROCEDURE ACT.
In 1 Chit., 547, it is said : " The King need not show
the cause until the whole panel in exhausted, and if one of
the j urors was not present, but appear before his default
is recorded, the King's counsel, if he has previously
challenged another juror, need not assign his cause of
challenge till after such defaulter has been sworn."
In the case of R. v. Geach, 9 G. &. P. 499, Parke, B.,
is reported to have held that: " if on the trial of a case of
felony, the prisoner peremptorily challenges some of the
jurors, and the counsel for the prosecution also challenges
so many that a full jury cannot be had, the proper course
is to call over the whole of the panel in the same order as
before, only omitting those who have been peremptorily
challenged by the prisoner, and, as each juror then appears,
for the counsel for the prosecution to state their cause of
challenge ; and if they have not sufficient cause, and the
prisoner does not challenge, for such juror to challenge."
Upon this case, Lord Campbell, C. J., in Mansell's case,
supra, remarks : " There can be no doubt that the course
pointed out by the learned judge was, under the circum-
stances, the proper course ; but is there any reason to
suppose that if, after the panel had been once called over,
and before any further step had been taken for the form-
ation of the jury, jurors on the panel who had been called
and did not at first answer had come into court in suffi-
cient number to make a full jury, they would have been
rejected, and the crown would have been put to assign
cause for its challenges ? No doubt it may be
assumed, prirnd facie, that all the jurors on the panel are
in court when the panel is called over, and if, when it has
been once called over, there is not a full jury made, the
usual course would be immediately to call the names over
again, and to put the crown upon assigning cause of
PROCEDURE ACT. 823
challenge but there is no decision nor dictum to
the effect that the panel may not be called over again,
■with a view to see whether there may not be some of the
jurors in the panel who may have come into court, and
who may make up a full jury, without putting the crown
to assign cause of challenge."
On a public prosecution for libel by order of the
attorney general, sec. 165 does not apply. — R. v. Mag
13 Q. L. R. 99. But in all trials for libels upon private
individuals, this section applies, even when the prosecution
is conducted by a counsel appointed by and representing
the attorney general.— R. v. Patteson, 36 U. G. Q. B. 129.
166. In those districts in the Province of Quebec, in which the
sheriff is required by law to return a panel of petit jurors, composed
one half of persons speaking the English language, and one half of
persons speaking the French language, he shall, in his return, specify
separately those jurors whom he returns as speaking the English lan-
guage, an 1 those whom he returns as speaking the French language
respectively ; and the names of the jurors so summoned shall be called
alternately from such lists :
2. Whenever any person accused of treason or felony elects to be
tried by a jury composed one half of persons skilcl in the language
of the defence, the number of peremptory challenges to which he
is entitled shall be divided, so that he shall only have the right to
challenge one half of such number from among the English speaking
jurors and one half from among the French speaking jurors:
3. This section applies only to the Province of Quebec — 32-33
V.,c. 239, s. 40.
The right to a medietate linguae jury exists in misde-
meanors as in felonies. — R. v. Maguire, 13 Q. L. R. 96.
Sub-sec. 2 of sec. 7, 27-28 V., c. 41 (1864,) clearly
gives that right to any prosecuted party. And though
the Quebec legislature, by the 46th V., c. 16, s. 62 (1883,)
has repealed the said act, this particular clause, giving
the right to a mixed jury, must be considered as still in
force, the Quebec legislature not having had the right to
824 PROCEDURE ACT.
repeal it. Otherwise, there is no statute in the Province
giving the right to a mixed jury, in any case whatever,
sec. 166 of the Procedure Act, merely taking it for granted
that the right exists. If the Quebec legislature had the
power to repeal that clause, the Dominion Parliament had
not the right to enact for Manitoba section 167 of the
Procedure Act.
By sub-sec. 2 of the aforesaid section 166 of the Pro-
cedure Act, the number of peremptory challenges to which
the prisoner is entitled is divided equally between the
jurors of the two languages ; but, in misdemeanors, the
defendant has the right to exercise all or any part of his
peremptory challenges indifferently, and without regard to
the language of the jurors.
Where in a case of felony, in which one half of the jury
on the application of the prisoner, were sworn as being
skilled in the French language, it was discovered after
verdict, that one of such Trench half was not so skilled in
the French language. Held, that the trial and verdict were
null and void. — R. v. Chamaillard, 18 L. C. J. 149.
The right to have a jury, composed of at least one half
of persons skilled in the language of the defence, must,
undoubtedly, both in Manitoba and Quebec, be exercised
upon arraignment. Immediately after arraignment, the
venire is presumed to have issued, and if it issues without
this order, the jurors must be summoned in the usual man-
ner, that it to say, without regard to language.
In R. v. Bougall, 18 L. C. J. 85, it was held by Mr.
Justice Ramsay : 1st. That where the defendant has asked
for a jury composed one half of the language of the defence,
six jurors speaking that language may first be put into the
box, before calling any juror of the other language; 2nd.
That the right of the crown to tell jurors " to stand aside,"
PROCEDURE ACT. 825
exists for misdemeanors as well as for felonies ; 3rd. That
when to obtain six jurors speaking the language of the
defence, all speaking that language have been called, the
crown is still at liberty to challenge to stand aside, and is
not held to show cause until the whole panel is exhausted.
Mr. Justice Rarnsay said that the calling the jurors' names
alternately from the English and French lists, mentioned
in section 40, now section 166 of the Procedure Act, is only
directory, and applies only to the calling of the jury inordi-
nary cases, where no order has been given for a jury com-
posed of one half English and one half French. The case
was reserved, by the learned judge, for the consideration of
the full court, but only on the one point thirdly above men-
tioned, given in the summary of the report of the decision
of the court, at page 242, 18 L. C. J., as follows : " Where,
to obtain six jurors speaking the language of the defence
(English,) the list of jurors speaking that language was
called, and several were ordered by the crown to stand
aside; and the six English-speaking jurors being sworn, the
clerk re -commenced to call the panel alternately from the
lists of jurors speaking the English and French languages,
and one of those (English) previously ordered to " stand
aside" was again called : Held, that the previous " stand
aside" stood good until the panel was exhausted by all the
names on both lists being called."
This was the only point reserved and the only one deci-
ded, and that could be decided by the full court. As said
by Mr. Justice Ramsay, " Be the question reserved difficult
or not, the court has no authority to go beyond it, and any
excursion into other matters is totally uncalled for and
without jurisdiction." A reference to such "excursions"
in DougaWa case would lead to the inference that the
majority of the judges were of opinion that, in all such
826 PROCEDURE ACT.
cases, the jurors should be called alternately from the two
lists, and that, if by consent of the parties, six jurors of
one language have first been called and sworn from one
of the lists, as in this case, then the calling from that list
should go on from the sixth juror sworn, and not begin the
said list over again. It does not appear by any of the
remarks of the learned judges in this case why, when a
jury composed of six English and six French has been
ordered (the defence, say, being English,) the list of the
English jurors is not first called till six English jurors are
sworn, and why the list of the French jurors is not then
called over till six French jurors are also sworn.
167. Whenever any person, who is arraigned before the Court of
Queen's Bench for Manitoba, demands a jury composed for the one
half at least of persons skilled in the language of the defence, if such
language is either English or French, he shall be tried by a jury com-
posed for the one half at least of the persons whose names stand first
in succession upon the general panel, and who, on appearing, and not
being lawfully challenged, are found in the judgment of the court to
be skilled in the language of the defence:
2. Whenever, from the number of challenges, or any other cause,
there is, in any sucli case, a deficiency of persons skilled in the lan-
guage of the defence, the court shall fix another day for the trial of
such case, and the sheriff shall supply the deficiency by summoning,
for the day so fixed, such additional number of jurors skilled in "the
language of the defence as the court orders, and as are found inscribed
next in succession on the list of petit jurors :
3. Whenever a person accused of treason or felony elects to be
tried by a jury composed one half of persons skilled in the language of
the defence, the number of peremptory challenges to which he is enti-
tled shall be divided, so that he shall have the right to challenge one
half of such number from among the English speaking jurors, and one
half from among the French speaking jurors :
4. This section applies only to the Province of Manitoba. — 34 V.,
c. 14, ss. 3, 4 and 5.
See remarks under preceding section.
168. Whenever, in any criminal case, the panel has been exhausted
by challenge, or by default of jurors by non-attendance or not answer-
PROCEDURE ACT. 827
ing when called, or from any other cause, and a complete jury for the
trial of such case cannot be had by reason thereof, then, upon request
made on behalf of the Crown, the court may, in its discretion, order
the sheriff or other proper officer forthwith to summon such number of
good men of the district, county or place, whether on the roll of
jurors or otherwise qualified as jurors or not, as the court deems
necessary and directs, in order to make up a full jury:
2. Such sheriff or officer shall forthwith summon by word of
mouth or in writing, the number of persons he is so required to sum-
mon, and add their names to the general panel of jurors returned
to serve at that court, and, subject to the right of the Crown and of
the accused respectively, as to challenge or direction to stand aside,
the persons whose names are so added to the panel shall, whether
otherwise qualified or- not, be deemed duly qualified as jurors in the
case, and so until a complete jury is obtained, and the trial shall then
proceed as if such jurors were originally returned duly and regularly
on the panel ; and if, before such order, one or more persons have been
sworn or admitted unchallenged on the jury, he or they may be retain-
ed on the jury, or the jury may be discharged, as the court directs :
3. Even* person so summoned as a juror shall forthwith attend and
act in obedience to the summons, and if he makes default shall be
punishable in like manner as a juror summoned in the usual way ; and
such jurors so newly summoned shall be added to the panel for such
case only — 32-33 F., c 29, s. 41. 6 Q. 4, c- 50, s. 37, Imp.
It is only upon request made on behalf of the Crown,
that the court is authorized to give the order mentioned in
this section, and even then, whether this order will be given
or not is left to the discretion of the court. This clause
specially enacts that such jurors summoned as therein pro-
vided for shall be added to the panel only for the case in
which such order has been given.
169. In all criminal cases, less than felony, the jury may, in the
discretion of the court, and under its direction as to the conditions,
mode and time, be allowed to separate during the progress of the trial.
—32-33 V., c. 29, s. 57.
On a trial for felony, the jury cannot be allowed to sepa-
rate during the progress of the trial, and where such sepa-
ration takes place, it is a mis-trial, and the court may direct
828 PROCEDURE ACT.
that the party convicted be tried again, as if no trial had
been had in such case. — R. v. Derrick, 23 L.C. «/. 239.
It is a general rule that upon a criminal trial there can
be no separation of the jury after the prisoner is given
in their charge, and before a verdict is given. The above
enactment restricts the rule to felonies ; in fact, it seems
to have always been admitted that in misdemeanors the
jury might be allowed to separate during the trial. — R. v.
Wool/, 1 Chitty's Rep. 401 ; R. v. Kinnear, 2 B. & Al.
462.
But, even under the above clause, there is no doubt
that, generally speaking, the judge ought not to allow the
jury to separate after they have been addressed by the
court and their deliberations have begun. In fact, some
judges never allow the jury to separate, and if it can be
done without too much inconvenience, this is, perhaps,
the best practice. When, however, such separation is
permitted, the judge ought to caution the jury against
holding conversation with any person respecting the case,
or suffering it in their presence, or reading newspaper
reports or comments regarding it, or the like. — 1 Bishop,
Cr. Proc. 996.
The doctrine that "a jury sworn and charged in case of
life or member cannot be discharged by the court, but
they ought to give a verdict," is exploded, and it may now
be considered as established law that a jury sworn and
charged with a prisoner, even in a capital case, may be
discharged by the judge at the trial without giving a ver-
dict, if a necessity — that is a high degree of need — for
such discharge is made evident to his mind. If after
deliberating together the jury say that they have not
agreed, and that they are not likely to agree, the judge
may discharge them. It lies absolutely in his discretion
PROCEDURE ACT. 829
how long they should be kept together, and his determina-
tion on the subject cannot be reviewed in any way. —
R. v. Ckarlesworih, 2 F. & F. 326; 1 B. & S. 460;
Winsor v. R. (in error), 7 B. & S. 490; 10 Cox, 276.
In the course of the trial one of the jurors had, without
leave, and without it being noticed by any one, left the
jury box and also the court-house, whereupon the court
discharged the jury without giving a verdict, and a fresh
jury was empanelled. The prisoner was then tried anew,
and convicted before the fresh jury : Held, by the Court
of Criminal Appeal, that the course pursued was right. —
R. v. Ward, 10 Cox, 573.
If a juryman is taken ill, so as to be incapable of
attending through the trial, the jury may be discharged,
and the trial and examination of witnesses begun over
again, another juror being added to the eleven; but in
that case the prisoner should be offered his challenges over
again, as to the eleven, and the eleven should be sworn
de novo. — R. v. Edwards, R. & R. 224 ; see also R. v.
Scalbert, 2 Leach, C20 ; R. v. Been, 2 31. & Rob, 472;
R. v. Gould, 3 Burn, 98.
In R. v. Murphy, 2 Q. L. R. 283, after the prisoner
had been given in charge to the jury, the case was adjourn-
ed for one day, on account of his counsel's illness.
But when such a trial has to be begun over again, it is
not regular, whether the prisoner assents to it or not,
instead of having the witnesses examined anew viva voce,
to simply call and swear them over again, and then read
over the notes of their evidence taken by the judge on
the first trial, even if, then, each witness is asked if what
was read was true, and is submitted at the pleasure of the
counsel on either side to fresh oral examination and cross-
examination. — By the Privy Council, in R, v. Bertrand,
10 Cox, 613.
830 PEOCEDURE ACT.
Although each juryman may apply to the subject before
him that general knowledge which any man may be sup-
posed to have, yet if he be personally acquainted with
any material particular fact, he is not permitted to mention
the circumstance privately to his fellows, but he must
submit to be publicly sworn and examined, though there
is no necessity for his leaving the box, or declining to in-
terfere in the verdict. — R. v. Rosser, 7 C. eft P. 648 ; 2
Taylor, Ev. par. 1244; 3 Burn, 96.
A juror was summoned in error, but not returned in the
panel, and in mistake was sworn to try a case, during the
progress of which these facts were discovered. The j ury
were discharged, and a fresh jury constituted. — R. v. Phil-
lips, 11 Cox, 142. It is not necessary when a jury are
discharged without giving a verdict to state on the record
the reason why they were so discharged. — R. v. Davison,
2 F. & F. 250 ; 8 Cox, 360.
The rule is that the right to discharge the jury without
giving a verdict ought not to be exercised, except in some
case of physical necessity, or where it is hopeless that the
jury will agree, or where there have been some practices
to defeat the ends of justice. If, after the prisoner is given
in charge, though before any evidence is given, it is discov-
ered that a material witness for the prosecution is not ac-
quainted with the nature of an oath, it is not a sufficient
ground for discharging the jury, so that the witness might
be instructed before the next assizes upon that point, and
a verdict of acquittal must be entered if the prosecution
has no other sufficient evidence. — R, v. Wade, 1 Moo. C.
C. 86. — R. v. White, 1 Leach, 430, seems a contrary deci-
sion, but is now overruled by the above last cited case.
Where, during the trial of a felony, it was discovered that
the prisoner had a relation on the jury, Erskine, J., after
PROCEDURE ACT. 831
consulting Tindal, C. J., held that he had no power to
discharge the jury but that the trial must proceed. — R.
v. Wardle, C. & M. 647.
If it appear, during a trial, that the prisoner, though he
Las pleaded not guilty, is mad, the judge may discharge
the jury of liim, that he may be tried after the recovery
of his understanding. — 1 Hale, 34; see post, sections 252
et seq. of the Procedure Act, and remarks thereunder.
In KinlocKs case, Fost. 16, 23 et seq., it was held that
a jury can be lawfully discharged in order to allow the
defendant to withdraw his plea of u not guilty, " and to
plead in bar.
On a writ of error the record showed that, on the trial
the judge discharged the jury after they were sworn, in
consequence of the disappearance of a witness for the
crown, ard the prisoner was remanded. Held, that the
judge had a discretion to discharge the jury which a court
of error could not review; that the discharge of the jury
without a verdict was not equivalent to an acquittal, and
that the prisoner might be put on trial again. — Jones v.
R, 3 L. X. 309.
A jury had been sworn on the previous day, to try the
prisoner on an indictment for murder. In the course of
the trial, one of the jurors was discharged because he came
from a house where there was small-pox. The case being
resumed before a new jury, the prisoner contended that
having been once put in jeopardy of his life, no new trial
could be had. The court overruled the objection. — R. v.
Considine, 8 L. N. 307.
170. Nothing in this act shall alter, abridge or affect any power
or authority which any court or judge has when this act takes effect,
or any practice or form in regard to trials by jury, jury process, juries
or jurors, except in cases where such power or authority is expr
altered by or is inconsistent with the provisions of this act. — 32-33
F., c. 29", s. 42.
832 PROCEDURE ACT.
A juror may be a witness. He is then sworn without
leaving the jury box. — 2 Taylor, Ev., rpar. 1244. See R.
v. Rosser, under preceding section. Under this clause,
it is probable that the whole of sect. 7 of the 27-28 V.,
c. 41 (1864), is still in forca in the Province of Quebec
(see remarks under sect. 166, ante,) except sub-sees. 8 and
9 thereof, which are repealed by 49 V., c. 4 (D.)
VIEW.
171. Whenever it appears to any court having criminal juris-
diction or to any judge thereof, that it will be proper and necessary
that the jurors, or some of them, who are to try the issues in such
case, should have a view of the place in question, in order to their
better understanding the evidence that may be given upon the trial of
such issues, whether such place is situate within the county or united
counties in which the venue in any such case is laid, or without such
county or united counties, in any other county, such court or judge
may order a rule to be drawn up, containing the usual terms, — and,
if such court or judge thinks fit, also requiring the person applying
for the view to deposit in the hands of the sheriff of the county or
united counties in which the venue in any such case is laid, a sum of
money to be named in the rule, for payment of the expenses of the
view.— 29-30 V. {Can.), c. 46, s. 1.
172. All the duties and obligations now imposed by law on the
several sheriffs and other persons when the place to be viewed is situ-
ate in the county or united counties in which the venue in any such
case is laid, shall be imposed upon and attach to such sheriffs and
other persons when the place to be viewed is situate out of the county
or united counties in which the venue in any such case is laid. — 29-
30 V. {Can.), c. 46, s. 2. 6 Geo. 4, c 50, s. 23, Imp.
The original statute, 1866, extended only to Upper
Canada. It was passed to give the power of ordering a
view out of the county in which the venue is laid. See
R. v. Whalley, 2 C. & K. 376; R. v. Martin, 14 Cox,
633 ; and.E. v. Martin, 12 Cox, 204.
SWEARING WITNESSES BEFORE GRAND JURY.
173. It shall not be necessary for any person to take an oath in
PROCEDUEE ACT. 833
open court in order to qualify him to give evidence before any grand
jury.— C.S. U. C, c. 109,*. 1.
17-4. The foreman of the grand jury and any member of the
grand jury, who may, for the time being, act on behalf of the f jreman
in the examination of witnesses, may administer an oath to every
•l who, under the circumstances hereinafter enacted, appears
and jury to give evidence in support of any bill of
indictment; and every such person may be sworn and examined
upon oath by sach grand jury touching the matters in question. —
C. S. U. C, c. 109, ss. 2 and <a,part ; C. S. L. C, c. 105, s. 2.
175. The name of every witness examined, or intended to be so
examined, shall be endorse! on the bill of indictment; and the fore-
man of the grand jury, or any member of the gran 1 jury so acting for
him, shall write his initials against the name of each witness sworn
by him an 1 examine 1 touching such bill of indictment — C. S. U. C,
c. 109, s. 3.
17(5. The name of every witness intended to be examined on any
bill of indictment shall be submitted to the grand jury by the erfi ;er
pr^-eouting on behalf of the crownj and no others shall be examined,
by or before such grand jury, unless upon the written order of the
preMd.ng judge.— C. S. O. C., c. 109, s. 4,
177. Nothing in this act shall affect any fees by law payable to
any officer of any court for swearing witnesses, but such fees shall be
payable as if the witnesses had been sworn in open court. — C S. (I.
109, s. 5.
Sees. 173, 174 and 175 are re-enactments of the Impe-
rial Act 19-20 Y., c. 54. Sec. 176 would probably be held
not to apply to private prosecutions, Bed quaere 1
The omission by the foreman to write his initials against >
the name of each witness sworn and examined would give
| to the prisoner the right, before plea, to ask that the
[indictment be sent back to the grand jury with a direction
to the foreman to so initial the names of the witnesses exam-
ined. In a case in Illinois, under a similar enactment,
■ it was held that the statute requiring the foreman of tne
! gran 1 jury to note on the indictment the names of the wit-
nesses upon whose evidence the same is found, is manda-
DDD
834 PKOCEDURE ACT.
tory, and that a disregard of this requirement would, no
doubt, be sufficient ground to authorize the court, upon a
proper motion, to quash the indictment. — Andrews v. The
People, 117 III. 195.
See Thompson on Juries, 724.
Under sec. 143 of the Procedure Act, amotion to quash
the indictment upon such a ground must be made before
plea, and upon such a motion the court would send the
indictment back to the grand jury to remedy the defect.
If the grand jury has been discharged, the indictment
it seems, must be quashed. It is the praciice, on many
circuits in England, and a very proper one it is, not to
formally discharge the grand jury till the end of the assi-
zes, so that, if necessary, they may be called back, at any
time, during the term.
With the grand jury's consent, the witnesses before them
are examined by the crown prosecutor or clerk of the
crown, or by the private prosecutor or his solicitor. But
the grand jury must be alone during their deliberations. —
1 Chit. 315; 3 Burn, 36 ; charge to grand jury, Brum-
rnond, J., 4 R. L. 364. Stephen's Cr. Proc. Art. 190.
Not more than twenty -three grand jurors should be sworn
in. But any number from twelve to twenty-three consti-
tutes a legal grand jury. At least twelve of them must
agree to find a true bill. If twelve do not so agree, they
must return ** not found," or " not a true bill," or " ignora-
mus" ; this last form, however, is not now often used. —
4 Stephen's Bl. 375 (10th Edit); 1 Chit. 322 ; 2
Burr. 1089 ; 3 Burn, 37; R. v. Marsh, 6 A. & E. 236;
Dickenson's Quarter Sess. 183; Stephen's Cr. Proc. Art.
186; Low's case, 4 Greenl. Rep. (Maine) 439 ; 3 Whart.
Cr. L. pais. 463, 497.
The court will not inquire whether the witnesses were
PROCEDURE ACT. 8o5
properly sworn before the grand jury. The grand jury are
at liberty to find a bill upon their own knowledge only.
— R. v. Russell, C. & M. 247 ; Stephen's Cr. Proc. Art.
185.
The court will not receive an affidavit of a grand juror
as to what passed in the grand jury room upon the subject
of the indictment. — R. v. Marsh, 6 A. & E. 236 ; nor
allow one of them to be called as a witness to explain the
finding.— R. v. Cooke, 8 C. & P. 582.
On the trial of Alexander Gillis for murder, his counsel
called the foreman of the grand jury which found the bill
against him to prove that a witness's evidence before the
grand jury was different from that given by the witness on
the trial. The counsel for the crown objected that a grand
juror could not be allowed to give evidence of what took
place in the grand jury room :
Held, that a grand juror's obligation to keep secret what
transpired before the grand jury only applied to what took
place among the grand jurors themselves, and did not pre-
vent his being called to prove what a witness had said. —
R. v. Gillis, 6 C. L. T. 203.
On this point, see Taylor, Ev., par. 863. Also, Stephen,
Ev., art. 114, where it is said: "It is also doubtful >
•whether a grand juror may give evidence as to what any
witness said when examined before the grand jury."
TRIAL.
178. Every person tried for any indictable offence shall be admit-
ted, after the close of the case for the prosecution, to make full answer
and defence thereto by counsel learned in the law. — 32-33 V., c. 29 *.
* 5, part.
179. Upon the trial the addresses to the jury shall be regula-
ted as follows: the counsel for the prosecution, in the event of the
defendant or his counsel not announcing, at the close of the case for
the prosecution, hi? intention to adduce evidence, shall be allowed to
836 PKOCEDURE ACT.
address the jury a second time at the close of such case, for the pur-
pose of summing up the evidence; and the accused, or his counsel,
shall then be allowed to open his case and also to sum up the evi-
dence, if any is adduced fur the defence ; and the right of reply shall
be according to the practice of t lie courts in England : Provided always,
that the right of reply shall be always allowed to the attorney gen-
eral or solicitor gtneral, or to any Queen's counsel acting on behalf of
the crown. — 32-33 V., c. 29, s. 45, part.
The law, as it stood formerly, did not allow a prisoner to
be defended by counsel in any felony except high-treason.
On this, Blackstone says (Vol. IV. 355) :
" But it is a settled rule at common law that no counsel
shall be allowed a prisoner upon his trial upon the general
issue, in any capital crime, unless some point of law shall
arise proper to be debated. A rule, which (however it may
be palliated under cover of that noble declaration of the
law, when rightly understood, that the judge shall be coun-
sel for the prisoner, that is, shall see that the proceedings
against him are legal and strictly regular,) seems to be not
at all of a piece with the rest of the humane treatment of
prisoners by the English law. For upon what face of reason
can that assistance be denied to save the life of a man,
which yet is allowed him in prosecution for every petty
trespass ? "
In England, the 6-7 William IV., c. 114, was the first
statute passed to " enable persons indicted for felony to
make their defence by counsel or attorney," and the ad-
dresses of counsel to the jury in felonies and misdemean-
ors are now regulated by the 28 V., c. 18, s. 2, as follows :
" If any prisoner or prisoners, defendant or defendants,
shall be defended by counsel, but not otherwise, it shall be
the duty of the presiding judge, at the close of the case for
the prosecution, to ask the counsel for each prisoner or
defendant so defended by counsel whether he or they
PROCEDURE ACT. 837
intend to adduce evidence, and in the event of none of them
thereupon announcing his intention to adduce evidence, the
counsel for the prosecution shall be allowed to address
the jury a second time in support of his case, for the purpose
of summing up tli3 evidence against such prisoner or
prisoners, or defendant or defendants, and upon every trial
for felony or misdemeanor, whether the prisoners, or defen-
dants, or any of them, shall be defended by counsel or not,
each and every such prisoner or defendant, or his or their
counsel respectively, shall be allowed, if he or they shall
think fit, to open his or their case or cases respectively ;
and after the conclusion of such opening or of all such
openings, if more than one, such prisoner or prisoners, or
defendant or defendants, or their counsel, shall be entitled
to examine such witnesses as he or they may think fit, and
when all the evidence is concluded, to sum up the evidenca
respectively ; and the right of reply and practice and course
of proceedings, save as hereby altered, shall be as at pre-
sent." See R. v. Kain, 15 Cox, 383.
It will be seen that the only difference between the
English and the Canadian clause is, that in the former, it
is only ivhen the prisoner is defended by counsel that the
counsel for the prosecution is allowed' to address the jury a
second time, after his evidence is over, when the counsel
for the defence does not declare that he inteuds to adduce
any evidence, icliich it is the duty of the presiding j"dye
to ask him at the close of the case for the prosecution ;
whilst in the Canadian clause this right is given, whether
the defendant be assisted by counsel or not, and he or his
counsel are required to announce at the close of the case for
the prosecution their intention to adduce evidence or not,
without the clause making it obligatory on the presiding
judge to ask the question, though in practice it is obvious
838 PROCEDURE ACT.
that the judge will always ascertain the intention of the
defence, on that point, before allowing the prosecutor to
sum up when he desires to do so.
The addresses of counsel, as regulated by this clause
179 of the Procedure Act, are therefore to take place as
follows : —
First case : When no evidence for the defence.
Address of counsel for the crown, opening the case ;
crown's evidence ; defendant or his counsel declares that
they have no evidence to adduce ; counsel for the crown
sums up ; defendant or his counsel addresses jury ; reply of
counsel for the crown, but only if attorney or solicitor-
general, or Queen's counsel, acting on behalf of the crown.
Second case : Where the defence adduces evidence.
Crown pros cutor opens the case ; evidence of the crown ;
defendant or his counsel addresses the jury; defendant's
evidence ; defendant or his counsel sums up ; reply of prose-
cution in all cases.
In the first case supposed, the counsel for the prosecu-
tion never in practice exercises both the rights of summing
up and replying ; if the counsel is not the attorney -general
or solicitor-general, or a Queen's counsel acting on behalf
of the crown, he has to sum up the evidence, after it is
over, as he is not allowed to reply ; if he is the attorney-
general or solicitor-general, or a Queen's counsel acting on
behalf of the crown, he. in practice, does not sum up, as he
is entitled to reply, whether the defendant adduces evidence
or not, though in England this right is very seldom exer-
cised, where no evidence, or evidence as to character only
is offered ; see post.
In the second case supposed, in practice the defence
adresses the jury only after its evidence is over ; two
addresses would generally have no other result but to
lengthen the trial, and fatigue court, counsel, and jury.
PROCEDURE ACT. 839
Opening of the counsel for the prosecution. — A pris-
oner charged with felony, whether he has been on bail or
not, must be at the bar, viz., in the dock during his trial,
and cannot take his trial at any other part of the court,
even with the consent of the prosecutor. — R. v. St. George,
9 C. & P. 485. A merchant was indicted for an offence against
the act of parliament prohibiting slave-trading (felony). His
counsel applied to the court to allow him to sit by him,
not on the ground of his position in society, but because he
was a foreigner, and several of the documents in the case
were in a foreign language, and it would, therefore, be
convenient for his counsel to have him by his side, that he
might consult him during his trial: Held, that the appli-
cation was one which ought not to be granted. — R. v.
Zidueta, 1 0. & K. 215 ; 1 Cox, 20. A similar application
by a captain in the army was also refused in 7?. v. Douglas t
C. <£ M. 193. But in misdemeanors, a defendant who is
on bail aud surrenders to take his trial need not stand at
the bar to be tried. — R. v. Lovett, 9 C. & P. 462. A pro-
secutor conducting his case in person, and who is to be
examined as a witness in support of the indictment, has no
right to address the jury as counsel ; R. v. Brice, 2 B. &
A. 606 ; R. v. Stoddart, Dickinson's Quarter Sessions,
152 ; R. v. Gurney, 11 Cox, 414, where a note by the
reporter, supported by authorities, says that such is the law,
whether the prosecutor is to be a witness or not.
Sergeant Talfourd, in Dickinson's Quarter Sessions,
495, on the duties of the counsel for the prosecution, says :
— " When the counsel for the prosecution addresses the
jury iu a case of felony, he ought to confine himself to a
simple statement of the facts which he expects to prove ;
but in cises where the prisoner has no counsel he should
particularly refrain from stating any part of the facts, the
840 PROCEDUEE ACT.
proof of which from his own brief appears doubtful, except
with proper qualification ; for he will either produce on the
minds of the jurors an impression which the mere failure
of the evidence may not remove in instances where the
prisoner is unable to comment on it with effect ; or may-
awaken a feeling against the case for the prosecution,
which in other respects it may not deserve. The court, too,
if watchful, cannot fail, in the summing up, to notice the
discrepancy between the statement and the proof. But in
all cases, as well of felony as misdemeanor, where a prisoner
has counsel, not only may the facts on which the prose-
cution rests be stated, but they may be reasoned on, so as
to anticipate any line of defence which may probably be
adopted. For as counsel for parties charged with felony
may now address the jury in their defence, as might always
have been done in misdemeanor, the position of parties
charged with either degree of offence is thus assimilated in
cases where they have counsel, and it is no longer desirable
for the prosecutor's counsel to abstain from observing
generally on the case he opens, in such manner as to
connect its parts in any way he may think advisable to
demonstrate the probability of guilt and the difficulty of an
opposite conclusion. But even here he should refrain from
indulging in invective, and from appealing to the preju-
dices or passions of the jury; for it is neither in good taste
nor right feeling to struggle for a conviction as an advocate
in a civil cause contends for a verdict."
On the duties of counsel, in opening the case for the
prosecution, it is said in Archbold, 159 : — " In doing so he
ought to state all that it is proposed to prove, as well
declarations of the prisoners as facts, so that the jury may
see if there be a discrepancy between the opening state-
ments of counsel and the evidence afterwards adduced in
PROCEDURE ACT. 841
support of them : per Parke, B., R. v. Rartel, 7 C. cl> P.
773 ; R. v. Davis, 7 C. & P. 783 ; unless such declarations
should amount to a confession, where it would be improper
for counsel to open them to the jury ; R. v. Sicatkins, 4 C.
& P. 548. R. v. Davis, 7 C. & P. 783. The leason for
this rule is that the circumstances under which the con-
fession was made may render it inadmissible in evidence.
The general effect only of any confession said to have
been made by a prisoner ought, therefore, to be mention-
ed in the opening address of the prosecutor's counsel."
Mr. Justice Blackburn, in R. v. Berens,4: F. & F. 842,
853, said that the position of prosecuting counsel in
a criminal case is not that of an ordinary counsel in
a civil case, but that he is acting in a quasi judicial,
capacity, and ought to regard himself as part of the court :
that while he was there to conduct his case, he was to do
it at his discretion, but with a feeling of responsibility, not
as if trying to obtain a verdict, but to assist the judge
in fairly putting the case before the jury, and nothing
more.
In R. v. Puddick, 4 F. <£ F. 497, per Crompton, J., the
counsel for the prosecution "are to regard themselves as
ministers of justice, and not to struggle for a conviction
as in a case at nisi prius ; nor be betrayed by feelings of
professional rivalry to regard the question at issue as one
of professional superiority, and a contest for skill and
pre-eminence."
Summing up by counset for the prosecution, where the
defence brings no evidence. — It has already been remarked
that in practice, if the counsel for the prosecution has the
right of reply and intends to avail himself of it, it would be
waste of time for him to sum up ; but if the counsel has
not the right of reply (as to which see post, under heading
842 PROCEDURE ACT.
" reply" ) he will perhaps find it useful to review the evid-
ence as it has been adduced, and give some explanations to
the jury. But it has been held in R. v. Puddick, 4 F. & F.
497, that the counsel for the prosecution ought not, in
summing up the evidence, to make observations on the
prisoner's not calling witnesses, unless at all events it has
appeared that he might be fairly expected to be in a position
to do so, and that neither ought counsel to press it upon
the jury, that if they acquit the prisoner they may be con-
sidered to convict the prosecutor or prosecutrix of perjury.
Nor is it the duty of counsel for the prosecution to sum up
in every case in which the prisoner's counsel does not call
witnesses. The statute gives him the right to do so, but
that right ought only to be exercised in exceptional cases,
such as where erroneous statements have been made and
ought to be corrected, or when the evidence differs from
the instructions. The counsel for the prosecution is to state
his case before he calls the witnesses, then, when the evi-
dence has been given, either to say simply, " I say nothing,"
or " I have already told you what would be the substance
of the evidence, and you see the statement which I made
is correct ; " or in exceptional cases, as if something differ-
ent is proved from what he expected, to address to the jury
any suitable explanation which may be required. — R. v.
Berens, 4 F. & F. 842, reporter's note. R. v. Holchester,
10 Cox, 226 ; R. v. Webb, 4 F. & F. 862.
The defence. — The defendant cannot have the assistance
of counsel in examining and cross-examining witnesses, and
reserve to himself the right of addressing the jury. — R. v.
White, 3 Camp. 98 ; R. v. Parkins, 1 C. &'P. 548. But
see post as to statements by him to the jury. But if the
defendant conducts his own case, counsel will be allowed to
address the court for him on points of law arising in the
PROCEDURE A<,T. 843
case. — Idem. Not more than two counsels are entitled to
address the court for a prisoner during the trial upon a
point of law.—/?, v. Bernard, 1 F. & F. 240. The rule
is that if the prisoner's counsel has addressed the jury, the
prisoner himself will not be allowed to address the jury
also.— R. v. Boucher, 8 C. <£ P. 141 ; R. v. Burro
M. 4 Rob. 124; R. v. Rider, 8 C. & P. 531. The coun-
sel for the defendant may comment on the case for the
prosecution. He may adduce evidence to any extent,
and even introduce new facts, provided he can establish
them by witnesses. He cannot, however, assume as proved
that which is not proved. Nor will he be allowed to state
anything which he is not in a situation to prove, or to state
the prisoner's story as the prisoner himself might have
done.— /?, v. Beard, 8 C. <Sc P. 142 ; R. v. Butcher, 2 M.
& Rob. 228.
Bishop says, 1 Cr. Proc. 311 : "No lawyer ought to j
undertake to be a witness for his client, except when
he testifies under oath, and subjects himself to cross-examin-
ation, and speaks of what he person illy knows. Therefore,
the practice, which seems to be tolerated in many courts, of
counsel for defendants protesting in their addresses to the
jury that they believe their clients to be innocent, should
be frowned down and put down, and never be permitted to
show itself more. If a prisoner is guilty and he commu-
nicates the facts fully to counsel in order to enable the
latter properly to conduct the defence, then, if the coun-
sel is an honest man, he cannot say he believes thj pris-
oner innocent ; but, if he is a dishonest man, he will as
soon say this as anything. Thus a premium is paid for
professional lying. Again, if the counsel is a man of
high reputation, a rogue will impose upon him by a false
story, to make him an " innocent agent " in communicat-
844 PROCEDURE ACT.
ing a falsehood to the jury. Lastly, a decent regard for
the orderly administration of justice requires that only
legal evidence be produced to the jury, and the unsworn
statement of the prisoner's counsel, that he believes the
prisoner innocent, is not legal evidence. It is the author's
cherished hope, that he may live to see the day when no
judge, sitting where the common law prevails, will ever,
in any circumstances, permit such a violation of funda-
mental law, of true decorum, and of high policy to take
place in his presence, as is involved in the practice of which
we are now speaking."
On the same subject, it is said in 3 Wharton's Cr. L.,
3010: "Nor is it proper for counsel in any stage of
the case to state their personal conviction of their client's
innocence. To do so is a breach of professional privilege,
well deserving the rebuke of the court. The defeudant is
to be tried simply by the legal evidence adduced in the
case; and to intrude on the jury statements not legal
evidence is an interference with public justice of such a
character that, if persisted in, it becomes the duty of the
court, in all cases where this can be done constitutionally,
to discharge the jury and continue the case. That which,
would be considered a high misdemeanor in third parties
cannot be permitted to counsel. And where the extreme
remedy of discharging the jury is not resorted to, any
undue or irregular comment by counsel may be either
stopped at the time by the court, or the mischief corrected
by the judge when charging the jury."
Summing up by the defence. — The counsel for the pris-
oner or the prisoner himself is now entitled by sec. 179
of the Procedure Act, at the close of the examination of his
witnesses, to sum up the evidence. — R. v. Wainwrhjht.
13 Cox, 171. In practice, it is the only time when the
PROCEDURE ACT. 845
counsel for the prisoner addresses the jury, and what has
jost been said on the defence generally applies to the
address to the jury, whether made before or after the exam
ination of witnesses.
A person on his trial defended by counsel is not entitled
to have his explanation of the case to the jury made through
the mouth of his counsel, but may, at the conclusion of his
counsel's address, himself address the jury and make such
statements subject to this, that what he says will be treated
I litional facts laid before the court, and entitling the
•cution to the reply. — R. v. Skimmin^ 15 Cox, 122.
See reporter's note.
In R. v. Weston, 14 Cox, 346, the prisoner's counsel
v. as allowed to make a statement on behalf of his client.
l'er Stephen J. — A prisoner may make a statement to
the jury, provided he does so before his counsel's address
to the jury. — R. v. Masters, 50 J. P. 104.
A prisoner on his trial defended by counsel may, at
the conclusion of his counsel's address, make a statement
of facts to the jury, but the prosecution will be entitled to
reply.— The Queen v. Rogers, 2 B. C. L. R. 119.
In R. v. Taylor, 15 Cox, 265, the prisoners were allowed
to address the jury after their counsel. See R. v. Alill
house, 15 Cox, 622, where the judge said that could be
allowed only where the prisoner called no witnesses.
The Reply. — If the defendant brings no evidence, the -
counsel for the prosecution is not allowed to reply, except
if he be, according to sec. 179 of the Procedure Act, the attor-
ney general or solicitor general, or a Queen's counsel acting
on behalf of the crown. And in the interpretation of this
clause, these words " acting on behalf of the crown " must
be read as applying to the attorney-general or solicitor-
general, as well as to a Queen's counsel, so that, if not act-
846 PROCEDURE ACT.
ing on behalf of the crown in a case, the attorney general
or solicitor general would not be entitled to a reply, if no
evidence is adduced by the defence. — i Rtus. 354, note.
On this privilege to reply, in cases instituted by the
crown, it is said in 1 Taylor, Ev., 'par. 3 >2 : " But as
this is a privilege, or rather a prerogative which stands
opposed to the ordinary practice of the courts, the true
friend of justice will do well to watch with j-alousy the
parties who are entitled to exercise it. Mr. Home, so long
back as the year 1777, very properly observed that the
attorney-general would be grievously embarrassed to pro-
duce a single argument of reason or justice on behalf of his
claim, and, as the rule which precludes the counsel for the
prosecution from addressing the jury in reply, when the
defendant has called no witnesses, has been very long
thought to afford the best security against unfairness in
ordinary trials, this fact raises a natural suspicion that a
contrary rule may have been adopted, and may still be
followed in State prosecutions, for a different and less legi-
timate purpose. It is to be hoped that ere long this ques-
tion will receive the consideration which its importance
demands, and that the Legislature, by an enlightened inter-
ference, will introduce one uniform practice in the trial of
political and ordinary offenders."
If the defendant gives any evidence, whether written or
parol, the counsel for the prosecution has a right to reply.
If witnesses are called merely to give evidence to char-
acter, the counsel for the prosecution is strictly entitled to
reply, though in England, in such cases, the practice is not
to reply.
In R. v. Bignold, 4 D. & R. 70, Lord Tenderden re-
vived an important rule, originally promulgated by Lord
Kenyon, and by which a reply is allowed to the counsel
PROCEDURE ACT. 847
for the prosecution, if the counsel for the defendant, in his
address to the jury, states any fact or auy document which
is not already in evidence, although he afterwards declines
to prove the fact or put it in writing. — n Bum, 357.
See B. v. Trevelli, 15 Cox, 289; B. v. Stephens, 11 Cox,
669; B. v. Bums, 16 Cox, 195.
reply. — Whenever the defendant gives evi-
dence to prove new matter by way of defence, which the
crown could not foresee, the counsel for the prosecution is
entitled to give evidence in reply to contradict it, but then
he does not address the jury in reply before going into that
evidence. The general rule is that the evidence in reply
must bear directly or indirectly upon the subject-matter of
the defence, and ought not to consist of new matter uncon-
nected with the defence, and not tending to controvert or
dispute it. This is the general rule, made for the purpose
of preventing confusion, embarrassment and waste of time;
but it rests entirely in the discretion of the judge whether
it ought to be strictly enforced or remitted, as he may think
best for the discovery of truth and the administration
of justice.— 2 Phil! i < rf A . 408; B. v. Briggs, 2 M. &
Bob. 199 ; B. v. Frost, 9 C. <b P. 159. Where the counsel
for the crown has, per incuriam, omitted to put in a piece
of evidence before commencing his reply, and the course of
justice might be interfered with if the evidence were not
given, the court may permit the evidence to be given. — B.
v. White, '1 Cox, 192. If evidence of his good character
is given on behalf of a prisoner, evidence of his bad char-
acter may be given in reply : B. v. Bov.ion, L. <i- C. 520,
overruling B. v. Burt, 5 Cox, 284.
Def Pi reply on evidence adduced in answer to
his own. — When evidence is adduced for the prosecution
in reply to the defendant's proof, the defendant's counsel
848 PROCEDURE ACT.
has a right to address the jury on it, confining himself to
its bearings and relations, before the general replying
address of the prosecution. — Dickinson's Quart. Sess. 565.
Witnesses may be recalled. — R. v. Lamere, 8 L. C. J.
380; R. Y.Jennings, 20 L. C. J. 291. 2 Taylor, Eu.
1331.
Charge by the judge to the jury. — It is the duty of the
president of the court, the case on both sides being closed,
to sum up the evidence. His address ought to be free from
all technical phraseology, the substance of the charge
plainly stated, the attention of the jury directed to the
precise issue to be tried, and the evidence applied to that
issue. It may be necessary, in some cases, to read over
the whole evidence, and, when requested by the jury, this
will, of course, be done ; but in general, it is better merely
to state its substance. — 5 Burn, 357 ; 1 Chit. 632.
In 12 Cox, 549, the editors reported a case from the
United States, preceding it with the following remarks :
" Although an American case, the principles of the crim-
inal law being the same as in England, and the like duties
and powers of the judge being recognized, a carefully pre-
pared judgment on an important question that may arise
here at some time has been deemed worthy of a place for
any future reference."
The case is Commonwealth v. Magee, Philadelphia,
December, 1873, decided by Pierce, J., who held that a
judge may, where the evidence is clear and uncontradicted,
and the character of the witnesses unimpeached and un-
shaken, tell the jury in a criminal case that it is their duty
to convict.
For the same reason which induced the editors of Cox's
Reports to insert this case in their columns, the full report
thereof is given here.
PROCEDURE ACT. 849
" This was a motion for a new trial and in arrest of
judgment on the ground of misdirection in the charge to
the jury.
"Pierce, J., in his judgment, said: The evidence against
the defendant was clear and explicit by two witnesses, who
testified to having bought and drunk liquors at the defen-
dant's place within this year. The defendant offered no
imony.
" There was nothing in the manner or matter of the wit-
B to call in question their veracity, or in the slightest
degree to impugn their evidence ; the counsel for the defence
did not in any manner question the truth of their evidence,
but confined his address to the jury to an attack upon the
law and the motives of the prosecutors. Were the jury,
under these circumstances, at liberty to disregard their
oaths and acquit the defendant? They had been solemnly
sworn to try the case according to the evidence, and a
regard to their oaths would lead them but -to one conclu-
sion, the guilt of the defendant. The counsel for the Com-
monwealth states the charge to have been : ' The judge
declared that he had no hesitation in saying, that, under
the evidence, it was the duty of the jury to render a ver-
dict of guilty under the bill of indictment.' But no matter
which form of expression was used, it was the evidence to
which I had just called their attention that indicated their
duty, and in view of which the remark was made. I per-
ceive no error in this. It was not a direction to the jury
to convict the defendant It was simply pointing them
to their duty. Jurors are bound to observe their oaths of
office, whether it will work a conviction or acquittal of a
defendant, and they are not at liberty to disregard uncon-
tradicted and unquestioned testimony at their mere will
and pleasure. Where, however, the testimony is contra-
EEE
850 PROCEDURE ACT.
dieted by testimony on the other side, or a witness is
impeached in his general character, or by the improbability
of his story, or his demeanor, it would be an unques-
tionable error in a judge to assume that the facts testified
to by him had been proved.
In 3 Wharton's Cr. L., par. 3280, it is said : " Can a
judge direct a jury peremptorily to acquit or convict if, in
his opinion, this is required by the evidence ? Unless
there is a statutory provision to the contrary, this is within
the province of the court, supposing that there is no dis-
puted fact on which it is essential for the jury to pass."
See, also, 1 Wharton Cr. L., par. 82a.
See Mr. Justice Kamsay's charge to the jury in M. v.
Dougall, 18 L. G J. 90.
In K v. Wadge (July 27th, 1878J, for murder,
Denman, J., remarked that " he had to take exception to
the request made to the jury by the counsel for the
defence, that, ' if they had any doubt about the case, they
should give the prisoner the benefit of it.' That was an
expression frequently employed by counsel in defending
prisoners, but it was a fallacious and an artful one, and
intended to deceive juries. The jury had no right to
grant any benefit or boon to any one, but only to be just
and do their duty."
In R. v. Glass (Montreal, Q. B., March, 1877J, the
counsel for the defence after the judge's charge asked him
to instruct the jury with regard to any doubt they
might have in the case. Eamsay, J., answered, " No, I
shall not, when there is no doubt."
When the judge has summed up the evidence he leaves
it to the jury to consider of their verdict. If they cannot
agree by consulting in their box they withdraw to a con-
venient place, appointed for the purpose, an officer being
PROCEDURE ACT. - ~ 1
sworn to keep them, as follows : " You shall well and truly
keep this jury without meat, drink, or fire, candle light
excepted ; you shall not surfer any person to speak to
them, neither shall you speak to them yourself, uuless it
be to ask them if they are agreed on their verdict. So
help you God."— 1 Chit. 632 ; 5 5<«, 357.
But this formality need not appear on the face of the
record. The precautions taken for the safe keeping of the
jury are noted by the clerk in the register, but
they form no part of what is technically known as the
record. Consequently the regularity or sufficiency of this
part of the proceedings cannot be questioned upon a writ
of error. — Duv 0. dU B rr bin-as v. R., 14 L. C.R.52.
In R. v. Winsor, 10 Cox, 276, Chief Justice Cockburn
said that there was no authority for allowing refreshments
to the jury after they have retired to deliberate upon their
verdict, and that he doubted exceedingly whether a judge
would be justified in putting the rule aside by a simple
act of his discretionary authori y in ordering them refresh-
ments during their deliberation.
In England a statute has been passed altering the
common law rule on the subject, 33-3-4 V., c. 77, but
in Canada, the law is yet as above stated in R v.
Winsor, except in New Brunswick, where it is providedo
by sec. 3 of 21 \ that " when the judge deems it
necessary that the jury shall be confined to the precincts of
the court house during the progress or until the completion
of any long trial for a criminal offence, the sheritf shall
provide them necessary refreshment, the expense o. which
shall be paid by the county treasury out of the funds of
the county, on the order of the presiding judge."
The jury coining back t>> the box, the prisoner is brought
to the bar. The clerk then calls the jurors over by their
852 PROCEDURE ACT.
names, and asks them whether they agree on their verdict ;
if they reply in the affirmative, he then demands who
shall say for them, to which they answer, their foreman.
He then addresses them as follows : " Gentlemen, are you
agreed on your verdict ; how say you, is the prisoner at
the bar (or naming, him if the trial is for a misde-
meanor, and the defendant bailed) guilty of the felony
(or as the case may be) whereof he stands indicted, or not
guilty ?" If the foreman says guilty, the clerk of the court
addresses them as follows : " Hearken to your verdict as
the court recordeth it : you say that the prisoner at the
bar (or as the case may be) is guilty (or " not guilty" if
such is the verdict received) of the felony (or as the case
may be) whereof he stands indicted ; that is your verdict,
and so you say all." The verdict is then recorded. The
assent of all the jury to the verdict pronounced by their
foreman in their presence is to be conclusively inferred.
But the court may, before recording the verdict, either
proprio motu, or, on demand of either party, poll the
jury, that is to say, demand of each of them successively
if they concur in the verdict given by their foreman. — 2
Hale, 299 ; Bacon's Abr. Verb, juries, p. 768 ; 1 Bishop,
Or. Proc. 1003.
The mere entry, by the clerk, of the verdict, does not
necessarily constitute a final recording of it. If it appear
promptly, say after three or four minutes, that it is not
recorded according to the intention of the jury, it may be
vacated and set right. — R. v. Parkin, 1 Moo. C. C. 45 ;
even if the prisoner has been discharged from the dock,
he will be immediately brought back, on the jury which
had not left the box saying that " not guilty '' has b^en
entered by mistake, and tnat " guilty " is their verdict. —
E. v. Vodden, Dears. 229.
PROCEDURE ACT. 853
A judge is not bound to receive the first verdict which -''
the jury gives, but may send them to reconsider it. Pol-
lock, C. B., said, in R. v. Mecmy, L. A C..213: " A judge
has a right, and in some cases it is his bounden dir
whether in a civil or a criminal cause, to tell the jury to
reconsider their verdict. He is not bound to receive their
verdict unless they insist upon his doing so ; and where
they reconsider their verdict, and alter it, the second, and
not the first, is really the verdict of the jury." Seei?. v.
Smith, 1 Russ. 7-49; Archbold, 166; Bacon's Abr. Verb.
"verdict ;" 5 Bum, 358; 1 Chit. 647.
A recommendation to mercy by the jury is not part of
their verdict. — R. v. Trebilcock, Dears. <fc B. 453; R. v.
Cratcshau; Bell, C. C. 303.
The saying that "a judge is bound to be counsel for the
prisoner" is erroneous. — Per "Wills, J., in R. v. Gibson, 16
Cox, 181.
180. Every person under trial shall be entitled, at the time of his
trial, to inspect, without fee or reward, all depositions, or copies
thereof, taken against him, and returned into the court before which
such trial is had.— 32-33 V., c 29, s. 46.
This is the 6-7 Will. IV., c. 114, sec. 4 of the Imperial
Statutes.
See the two next sections, and sec. 74, ante.
181. Every person indicted for any crime or offence shall, before
being arraigned on the indictment, be entitled to a copy thereof, on
paying the clerk ten cents per folio for the same, if the court is of
opinion that the same can be made without delay to the trial, but
not otherwise.— 32-33 V., c. 29, s. 47.
By usage, in Canada, one hundred words form a folio.
At common law, the prisoner was not entitled to a
copy of the indictment in cases of treason or felony. — 1
Chit. 403.
182. Every person indicted shall be entitled to a copy of the
854 PROCEDURE ACT.
depositions returned into court on payment of ten cents per folio for
the same, provided, if the same are not demanded before the opening
of the assizes, term, sittings or sessions, the court is of opinion that
the same can be made without delay to the trial, but not otherwise;
but the court may, if it sees fit, postpone the trial on account of such
copy of the depositions not having been previously had by the person
charged.— 32-33 V., c 29, s. 48; 11-12 V., c. 42, s. 27, Imp.
See sec. 74, ante.
VERDICT OF ATTEMPT, ETC.
183. If, on the trial of any person charged with any felony or
misdemeanor, it appears to the jury, upon the evidence, that the
defendant did not complete the offence charged, but that he was
guilty only of an attempt to commit the same, such person shall not,
by reason thereof, be entitled to be acquitted, but the jury shall be at
liberty to return as their verdict that the defendant is not guilty of the
felony or misdemeanor charged, but is guilty of an attempt to commit
the same; and thereupon such person shall be liable to be punished
in the same manner as if he had been convicted upon an indictment
for attempting to commit the particular felony or misdemeanor
charged in the indictment; and no person tried as lastly mentioned
shall be liable to be afterwards prosecuted for committing or attempt-
ing to commit the felony or misdemeanor for which he was so tried.
—32-33 V., c. 29, s. 49.
This clause is taken from sec. 9 of 14-15 V., c. 100,
of the English statutes, upon which Greaves has the
following remarks :
"As the law existed before the passing of this act
(except in the case of the trial for murder of a child, and
the offences falling within the 1 V., c. 85, s. 11,) (sec. 191
post), there was no power upon the trial of an indictment
for any felony to find a verdict against a prisoner for
anything less than a felony, or upon the trial of an indict-
ment for a misdemeanor to find a verdict for an attempt to
commit such misdemeanor. — (See R. v. Catherall, 13 Cox,
109 ; R. v. Woodhall, 12 Cox, 240 ; R. v. Bird, 2 Den.
94; 1 Chit. 251, 639). At the same time the general
principle of the common law was, that upon a charge of
PROCEDURE ACT. SOO
felony or misdemeanor composed of several ingredients, the
jury might convict of so much of the charge as constituted
a felony or misdemeanor. — B. v. HoU.ingbury,4: B. & C.
329. The reason why, upon an indictment for felony, the
jury could not convict of a misdemeanor, was said to be
that thereby the defendaut would be deprived of many
advantages ; for if he was indicted for the misdemeanor he
might have counsel, a copy of his indictment, and a spe-
cial jury.— R. v. Wtstheer, 2 Str. 1133 ; 1 Leach, 12. The
prisoner is now entitled, in cases of felony, to counsel, and
to a copy of the depositions, and though not entitled to a
copy of the indictment, yet as a matter of courtesy his
counsel is always permitted to inspect it. With regard to
a special jury, in the great majority of cases a prisoner
would not desire it, and it can in no case be obtained unless
the indictment has been removed by certiorari. Very
little ground, therefore, remained for objecting to the jury
being empowered to find a verdict of guilty of an attempt
to commit a felony upon an indictment for such felony,
and the prisoner obviously gains one advantage by it, as
where he is charged with a felony, he may peremptorily
challenge jurymen, which he could not do if indicted for
a misdemeanor. No prejudice, therefore, being likely to
arise to the prisoner, and considerable benefit in the admin-
istration of criminal justice being anticipated by the
change, the jury are now empowered, upon the trial of any
indictment for a felony to convict of an attempt to c jmmit
that particular felony, and upon the trial of any indictment
for a misdemeanor to convict of an attempt to commit
that particular misdemeanor."
In B. v. M . . Jku/n. &• B. 197, the prisoner was
indicted for breaking and entering a dwelling-house, and
stealing therein certain goods specified in the indictment,
856 PROCEDURE ACT.
the property of the prosecutor. At the time of the break-
ing and entering the goods specified were not in the
house, but there were other goods there the property of the
prosecutor. The jury acquitted the prisoner of the felony
charged, but found him guilty of breaking and entering the
dwelling-house of the prosecutor, and attempting to steal
his goods therein : Held, by the court of criminal appeal,
that the conviction was wrong, as there was no attempt to
commit the "felony charged " within the meaning of the
aforesaid section.
Cockburn, C. J., said : " The effect of the statute is, that
if you charge a man with stealing certain specified goods,
he may be convicted of an attempt to commit ' the felony
or misdemeanor charged,' but can you convict him of steal-
ing other goods than those specified ? If you indict a man
for stealing your watch, you cannot convict him of attemp-
ting to steal your umbrella. I am of opinion that this
conviction cannot be sustained. The prisoner was indicted
for breaking and entering the dwelling-house of the prose-
cutor, and stealing therein certain specified chattels. The
jury found specially that, although he broke and entered
the house with the intention of stealing the goods of the
prosecutor, before he did so, somebody else had taken away
the chattels specified in the indictment ; now, by the recent
statute it is provided, that where the proof falls short of
the principal offence charged, the party may be convicted
of an attempt to commit the same. The word attempt
clearly conveys with it the idea, that if the attempt had
succeeded, the offence charged would have been committed,
and therefore the prisoner might have been convicted if the
things mentioned in the indictment or any of them had
been there ; but attempting to commit a felony is clearly
distinguishable from intending to commit it. An attempt
PROCEDURE ACT. 857
must be to do that which, if successful, would amount to
the felony charged ; but here the attempt never could have
succeeded, as the things which the indictment charges the
prisoner with stealing had been already removed, stolen
by somebody else. The jury have found him guilty of
attempting to steal the goods of the prosecutor, but not
the goods specified in the indictment."
An attempt to commit a felony can only be made out
where, if no interruption had taken place, the felony itself
could have been committed. The prisoner was indicted
for attempting to commit a felony by putting his hand into
A's pocket, with intent to steal the property in the said
pocket then being. The evidence was that he was seen to
put his hand into a woman's pocket ; but there was no
proof that there was anything in the pocket : Held, that
on the assumption that there was nothing in the pocket, the
prisoner could not be convicted of the attempt charged ;
R. v. Collins, L. <t C. 471 ; though he was guilty of an
assault with intent to commit a felony. — Stephens Or. L.,
p. 39, note. (Hit Edit.)
Greaves says, referring to these cases : " There can be no
doubt that this and the preceding decision were right upon
the grounds that the indictment in the former alleged the
goods to be iu the house, which was disproved, and in the
latter to be in the pocket, which was not proved." —
Attempts to commit crimes, by Greaves, Cox & 8
9. Ads, cix.
But the case of R. v. Goodhall, 1 Den. 187, where it was
held that on an indictment for using an instrument with
intent to procure the miscarriage of a woman, the fact of
the woman not being pregnant is immaterial, Greaves
admits, is a direct authority that a man may be convicted
of an intent to do that which it was impossible to do. —
858 PROCEDURE ACT.
Idem, cxi. And if a person administers any quantity of
poison, however small, however impossible that it could
have caused death, yet if it were done with the intent to
murder, the offence of administering poison with intent to
murder is complete: R. v. Gluderay 1 Den. 514; 1
Russ. 901, note by Greaves. And this rests on a dis-
tinction between an intent and an attempt to commit a
crime ; it seems that a man may be convicted of doing an
act with intent to commit a crime, although it be impos-
sible to commit such crime, but that a man cannot be
convicted of an attempt to commit a crime unless the
attempt might have succeeded. — Greaves, " Attempts,"
Gox & Saunders' Cons. Acts, cxii.
It was held in R. v. Johnson, L. & C. 489, that an
indictment for an attempt to commit larceny, which charges
the prisoner with attempting to steal the goods and chattels
of A., without further specifying the goods intended to be
stolen is sufficiently certain. And in R. v. Collins, L. &
C. 471, above referred to, the indictment charged the defen-
dant with attempting to steal " the property of the said
woman in the said gown pocket then being," without further
specifying the goods attempted to be stolen.
In R. v. Gheeseman, L. & G. 140, Blackburn, J., said :
" If the actual transaction has commenced, which would
have ended in the crime if not interrupted, there is clearly
an attempt to commit the crime."
In R. v. Roebuck, Dears, & B. 24, the prisoner was
indicted for obtaining money by false pretences. It
appeared that the prisoner offered a chain in pledge to a
pawnbroker, falsely and fraudulently stating that it was
a silver chain, whereas in fact it was not silver, but was
made of a composition worth about a farthing an ounce.
The pawnbroker tested the chain, and finding that it with-
PEOCEDUEE ACT. 859
stood the test, he, relying on his own examination and
test of the chain, and not placing any reliance upon the
prisoner's statement, lent the prisoner ten shillings, the
sum he asked, and took the chain as a pledge ; the jury
found the prisoner guilty of the attempt to commit the
misdemeanor charged against him. Held, that the con-
viction was right.
It is said in 2 Russ. 599, on this right given to con-
vict the defendant of the attempt to commit the offence
charged : " There are some offences which may be attempt-
ed to be committed, whilst there are others which cannot
be so attempted. It is obvious that where an offence con-
sists in an act that is done, there may be an attempt to do
that act which will be an attempt to commit that offence.
But where an offence consists in an omission to do a thing,
or in such a state of things as may exist without anything
being done, it should seem that there can be no attempt
to commit such offence. Thus if an offence consists in-
omitting or neglecting to turn the points of a railway, it
may well be doubted whether there could be an attempt to
commit that offence. And a very nice question might
perhaps be raised on an indictment on the 9-10 Will. III.,
c. 41, s. 2, for having 'possession of marked stores, where
the evidence failed to prove that the stores actually came
into the prisoner's possession though an attempt to get them
into his possession, as in R. v. Cohen, 8 Cox, 41, and
knowledge of their being marked, might be proved ; for in
order to constitute the offence of having possession of
anything, it is not necessary to prove any act done,
and, therefore, it would be open to contend that there
could not be an attempt to commit such an offence."
It is to be observed, however, that the 50-51 V., c. 45,
s. 6, of our statutes corresponding to the 9-10 W. Ill, •. 41,
s. 2, (Imp.), has the words " receives, possesses ; " and on
8G0 PROCEDURE ACT.
a count charging the receiving of stores, there seems no
reason to doubt that there might be a conviction of an
attempt to receive ; for receiving clearly includes an act
done. Thus in R. v. Wiley, 2 Den. 37, where a pris-
oner went into a coach office and endeavoured to get
possession of stolen fowls which had come by a coach,
there seems no reason why she might not have been
convicted of an attempt to receive the fowls.
0 Can there be an attempt to commit an assault ? Greaves
says : " In principle there seems no satisfactory ground
for doubting that there may be such an attempt. Although
an assault may be an attempt to inflict a battery on
another, as where A. strikes at B. but misses him, yet it
may not amount to such an attempt, as where A. holds up
his hand in a threatening attitude at B., within reach of
him, or points a gun at him without more. Is not the
true view this — that every offence must have its begin-
ning and completion, and is not whatever is done which
falls short of the completion an attempt, provided it be
sufficiently proximate to the intended offence ? Pointing a
loaded gun is an assault. Is not raising the gun in order
to point it an attempt to assault ?
In R. v. Ryland, 11 Cox, 101, it was held that under
an indictment for unlawfully assaulting and having carnal
knowledge of a girl between ten and twelve years of age,
the prisoner may be convicted of the attempt to commit
that offence, though the child was not unwilling that the
attempt should be made.
In R. v. II iprjood, 11 Cox, 471, H. was indicted for
rape, and W. for aiding and abetting. Both were acquit-
ed of felony, but H. was found guilty of attempting to
commit the rape, and W. of aiding H. in the attempt,
The conviction was affirmed both as to W. and H. See
R. v. Bain, L. & C. 129, and note a thereto.
PROCEDUKE ACT. 861
It was held in R. v. Connell, 6 Cox, 178, that upon a
trial for felony the jury under the above clause can
only convict of an attempt which is a misdemeanor, and
not of an attempt which is made felony by statute.
Thus, on an indictment for murder with poison, the pris-
oner cannot be convicted of feloniously administering
poison to the deceased with intent to murder him. But it
is doubtful if, in Canada, this ruling would be followed in
view of the enactment contained in section 185, post.
The attempt to commit a felony or a misdemeanor is,
at common law, a misdemeanor, punishable by fine or
imprisonment, or both. See post, s. 31, c. 181.
Bat many cases of attempts to commit indictable
offences must fall under s. 34, c. 162, p. 184, ante, which
provides for the punishment of the common law misde-
meanor of any one who assaults any person with intent to
commit any indictable offence.
An assault with intent to commit a crime is an attempt
to commit that crime ; though see reporter's note in R. v.
Lunger/, 4 F. A F. 99.
An attempt to commit a crime i3 an intent to commit
such crime by some overt act, and in cases of rape, etc.,
necessarily includes an assault. — Stephen's Or. L. art., 49.
Upon an indictment for rape or for assaulting and having
carnal knowledge of a girl between ten and twelve years
of age, the prisoner may be convicted of the attempt. — R.
v. Ryland, 11 Cox, 101. Also, R. v. Hapgood, obi supra ;
R. x.Mayers, 12 Cox, 311 j R. v. Barratt, 12 Cox, 498;
R. v. Dungey, 4 F. & F., 99.
The prisoner wrote a letter to a boy of fourteen, inciting
him to commit an unnatural offence : Held, that this was
an attempt to incite to commit a crime, and a misdemeanor.
An attempt to commit a misdemeanor is a misdemeanor.
To incite, solicit or do any act with intent to induce
862 PROCEDURE ACT.
another person to commit a felony is a misdemeanor. — R.
v. R -Msford, 13 Cox, 9. See R. v. Gregory, 10 Cox, 459,
and 1 Burn, 342.
184. If, upon the trial of any person for any misdemeanor, it
appears that the facts given in evidence, while they include such
misdemeanor, amount in law to a felony, such person shall aot, by
rea on thereof, lie entitled to be a^qu tted of such misdemeanor, unless
the court before which such trial is h id thinks fit, in its discretion,
to discharge the jury from giving any verdict upon such trial, an I to
direct such person to be indicted for felony, — in which case such
person may be dealt with in all respects as if he had not been put
upon his trial for such misdemeanor ; and the person tried for such
misdemeanor, if convicted, shall not be liable t • be afterwards prose-
cuted for felony on the same facts. — 32-33 V , c. 29, s. 50.
The above clause is taken from the 14-15 V., c. 100,
s. 12 of the Imperial Acts. The words in italics are not in
the English Act, but the clause has always been inter-
preted, in England, as if these words were actually iu it.
Greaves says on this clause: "This section was intro-
duced to put an end to all questions as to whether on an
indictment for a misdemeanor, in case upon the evidence it
appeared that a felony had been committed, the defendant
was entitled to be acquitted, on the ground that the misde-
meanor merged in the felony. — R. v. Keale, 1 C. & K. 591 ;
1 Den. 36 ; R. v. Button, 1 1 Q. B. 929. The discretionary
power to discharge the jury is given in order to pi event
indictments being collusively or im properly preferred for
misdemjan >rs where they ought to be preferred for
felonies, and also to meet those cas es where the felony is
liable to so much more severe a punishment than the
misdemeanor, that it is fitting that the prisoner should be
tried and punished for the felony For instance, if on an
indictment for attempting to com am a rape, it (dearly
appeared that the crime of rape was committed, it would
be right to discharge the jury."
Formerly, where upon a indictment for an assault with
PROCEDURE ACT. 863
intent to commit a rape, a rape was actually prov« d, an
acquittal would have been directed, on the ground that the
misdemeanor was merged in the felony. — R. v. Harm-
wood, 1 East, P. C. 430 ; R. v. Xicholls, 2 Cox, 1 82 ; though
in R. v. Neale, 1 Den. 36, cited, ante, by Greaves, it was
held before this enactment that where a prisoner was in-
dicted fur carnally knowing a girl between ten and twelve
ra of age, and it was proved that he had committed
a rape upon her, he was not thereby entitled to be acquitted.
The above section removes all doubt on the matter, but it
must not be lost sight of, that by its express terms the
facts proved, though amounting in law to a felony, must
ateo, include the dm mot charged. For instance
if upon an indictment for having carnal knowledge of
a girl above the age of ten years and under the age of
twelve years, it appears that in fact the girl was under the
age of ten years, this section does not apply, and the pris-
oner must be acquitted; the offence charged against him
is not proved ; quite another and totally different offence
is proved, and this offence as proved does not include the
misdemeano • charged. — R. v. Shott, 3 C. & K. 206, is a
ruling to this effect, in England, though there the words
" while they include such misdemeanor " are not in the
corresponding clause.
But the clause fully applies where, upon an indictment
for false pretences, the facts prove that the false pretences
have been affected by a forgery ; in such a case, though a
forgery be proved, the prisoner may nevertheless be con-
victed of the misdemeanor charged, if such is also proved.
185. No person shall be tried or prosecuted fur an attempt to com- :
mit any felony or misdemeanor, Who has been previously tried for
committing the same offence. — 32-33 V., c. 29, s. 52.
There is no principle so well established in the English
criminal law, and in fact, in every system of jurisprudence,
864 PROCEDURE ACT,
that " no man is to be brought into jeopardy of his life
more than once for the same offence : '' 4 Blackstone, 335 ;
or as expressed by Lord Campbell, in R. v. Bird, 2 Den.
216, in other terms : "No one ought to be twice tried for
the same cause," a rule, in the civil law, contained in
the words, "nemo bis vexari debet -pro eadem causd."
It was laid down by Mr. Justice Buller, in R. v. Van-
dercomb, 2 Leach, 708, and has never been since doubted,
that the true criterion to ascertain whether an indictment
" puts any one twice in jeopardy for the same offence," is
whether the facts charged in the second indictment would
have been sufficient to support a conviction upon the first
indictment ; and by the words a conviction upon the first
indictment, is not meant only a conviction of the crime
expressly charged in the first indictment but any convic-
tion allowed by law upon the first indictment.
The above clause is not in the Imperial Acts. The last
part of sec. 183, ante, seems to cover it, and if R. v.
Council, 6 Cox, 178, ubi supra, under sec. 184, is to be
followed, this clause 185 should be repealed.
186. If the facts or matters alleged in an indictment for any felony
under the " Act respecting Treason and other Offences against the
QueeiCs authority," amount in law to treason, such indictment shall
not, by reason thereof, be deemed void, erroneous or defective; and
if the facts or matters proved on the trial of any person indicted for
felony under the said Act amount, in law to treason, such person shall
not, by reason thereof, be entitled to be acquitted of such felony; but
no person tried for such felony shall be liable to be afterwards prose-
cuted for treason upon the same facts. — 31 V., c. 69, s. 8. 11-12 V.,
c. 12, s. 7, Imp.
See c. 146, p. 30, ante.
187. The jury empanelled to try any person for treason or felony
shall not be charged to inquire concerning his lands, tenements or
goods, nor whether he fled for such treason or felony. — 32-33 V., c
29, s. 53.
PROCEDURE ACT. 865
This is the 7-8 Geo. IV., c. 28, s. 5 of the Imperial
Statutes.
By the old English law, flight by any one accused of a
crime was an offence, and in treason and felony, if the jury
found that the prisoner "had fled for it,'' this finding
carried the forfeiture of his goods and chattels, whether
found guilty or acquitted of the crime charged. Long
before being specially abolished by Parliament, the ques-
tion " did he fly for it " had become a mere form of no
consequence, as the jury always found against the flight. —
4 Black-stone, 387; 1 Chit 731.
188. If any person tried for the murder of any child is acquitted
thereof, the jury by whose verdict such person is acquitted may rind,
in case it so appears in evidence, that the child had recently been
born, and that such person did, by some secret disposition of such
child or of the dead body of such child, endeavor to conceal the birth
thereof, and thereupon the court may pass such sentence as if such
person had been convicted upon an indictment for the concealment
of birth.— 32-33 F., c. 20, s. 61, part. 2 1-23 V., c. 100, s. 60, Imp.
See p. 221, ante, under s. 49 of c. 162.
Cases have not unfrequently occurred where endeavors
have been made to conceal the birth of children, and there has
been no evidence to prove that the mother participated in
those endeavors, though there has been sufficient evidence
that others did so, and under the former enactments, under
such circumstances, all must have been acquitted. The
present clause is so framed as to include every person who
uses any such endeavor, and it is quite immaterial under
it whether there be any evidence against the mother or not.
Under the former enactments a person assisting the
mother in concealing a birth would only have been
indictable as an aider or abettor ; but a person so assisting
would come within the terms of this clause as a principal.
The terms of the former enactments were " by secret
FFF
866 PROCEDURE ACT.
burying or otherwise disposing of the dead body," and on
these terms many questions had arisen. See R. v. Snell,
2 M. SRob. 44 ; R. v. Watkins, 1 Russ. 777 ; R. v. Ash,
2 M. & Rob. 294; R. v. Bell, ib. ; R. v. Halton. ib. ; R.
v. Jones, ib. ; i2. v. Goldthorpe, 2 47oo. 0. C. 240 ; R.
v. Perry, Dears. 471. Under this clause "any secret
disposition " is sufficient.
Under the former enactments the mother alone could be
convicted of this offence where she was tried for the murder
of her child. Under this clause any person tried for the
murder of a child may be convicted of this offence, whether
the mother be convicted or not. — Greaves' note to this
section and to s. 49 of c. 162, p. 221, ante.
189. If, upon the trial of any indictment for any felony, except in
cases of murder or manslaughter, the indictment alleges that the
accused did wound or inflict grievous bodily harm on any person with
intent to maim, disfigure or disable any person, or to do some other
grievous bodily harm to any person, or with the intent to resist or pre-
vent the lawful apprehension or detainer of any person, and the jury
is satisfied that the accused is guilty of the wounding, or inflicting
grievous bodily harm, charged in the indictment, but is not satisfied
that the accused is guilty of the felony charged in such indictment, the
jury may acquit of the felony, and find the accused guilty of unlawfully
and maliciously wounding, or inflicting grievous bodily harm; and
such accused shall be liable to three years' imprisonment. — 32-33 V.
c. 20, s. 19, part. 14-15 V., c. 19, s- 5, Imp.
The words in italics are not in the Imperial Act.
In R. v. Ward, 12 Cox, 123, the indictment charged
a felonious wounding with intent to do grievous bodily
harm. The jury returned a verdict of unlawful wounding,
under 14-15 V., c. 19, s. 5 (s. 189, supra). Upon a case
reserved, it was held that the words "maliciously and"
must be understood to precede the word unlawfully in
this section, and that to support the verdict the act
must have been done maliciously as well as unlawfully.
PROCEDURE ACT. 867
Greaves, in an article on this case, 1 Law Magazine
379, censures severely this ruling. According to him, a
new offence, that of unlawful wounding, was created by
that clause, and the word maliciously has been purposely
omitted from it. In a preceding number of the same ma-
gazine, p. 269, an anonymous writer attacks the decision
in Ward's Case from another point of view. The shooting
was certainly proved not tD have been intended to strike
the prosecutor, but the court, by twelve judges against
three, found that there was proof of malice sufficient to
support the conviction. On this appreciation of the facts
of the case, this anonymous writer censures the judgment,
at the same time admitting its correctness, so far as the
court held the maliciously as necessary as the unlawfully
under this clause, though the word maliciously had been
dropped in the statute. It thus appears that the question
is not very well settled in England, so far.
This enactment applies to a robbery with wounding
under s. 34 of the Larceny Act, p. 331, ante. — R. v.
Miller, 14 Cox, 356, has no application in Canada.
The defendant may also be found guilty of a common
assault or of attempting to commit the offence charged. —
See remarks under s. 14, c. 162, p. 163, ante.
On motion to discharge a prisoner convicted before a
Police Magistrate, on habeas corpus, where the conviction
charged that the prisoner did " unlawfully and maliciously
cut and wound one Mary Kelly, with intent then and there
to do her grevious bodily harm."
Held, that the addition of the words " with intent to do
grevious bodily harm " did not vitiate the conviction, and
that the prisoner might be lawfully convicted of the statu-
tory misdemeanor of malicious wounding.
Held, also, that imprisonment at hard labor for a year
868 PROCEDURE ACT.
was properly awarded under 38 V., c. 47. — The Queen v.
Boucher, 8 P. R. (Ont.) 20. A firmed on appeal, 4 Ont.
App. R. 191.
190. If, upon the trial of any person for unlawfully and mali-
ciously administering to or causing to be administered to or taken by
any other person, any poison or other destructive or noxious thing, so
as thereby to endanger the life of such person, or so as thereby to inflict
upon such person any grievous bodily harm, the jury is not satisfied
that such person is guilty of such felony, but is satisfied that he is
guilty of the misdemeanor of unlawfully and maliciously administer-
ing to, or causing to be administered to or taken by such person, any
poison or other destructive or noxious thing, with intent to injure,
aggrieve or annoy such person, the jury may acquit the accused of
such felony, and find him guilty of such misdemeanor; and thereupon
he shall be punished in the same manner as if convicted upon an
jndictment for such misdemeanor. — 32-33 V., c. 20, s. 24. 24-25 V., c.
100, ss. 23, 24, 25, Imp.
See p. 167, ante, remarks under sees. 17, 18, c. 162.
191. If, upon the trial of any person for any felony whatsoever, the
crime charged includes an assault against the person, although an
assault is not charged in terms, the jury may acquit of the felony, and
find a verdict of guilty of assault against the person indicted, if the
evidence warrants such finding, and the person so convicted shall be
liable to five years' imprisonment. — 32-33 V., c. 29, s. 51 .
See sec. 248, post.
From 1837 to 1851, the statute book in England con-
tained an enactment similar to this one, the 7 Will. IV.
and 1 V., c. 85, s. 11 ; but it was found there, that such
great difficulties had arisen in its construction, that it was
repealed by the 14-15 V., c. 100, s. 10.
On this repealing clause, Greaves says : —
"This section repeals the 11th sec. of the 1 V., c. 85,
which had not only led to difficulties in determining to
what cases it applied, but had been applied to cases to which
it is extremely questionable whether it was ever intended
to apply. The power to convict of an attempt to commit
PROCEDURE ACT. 869
a felony given by the last section (sec. 183 of our Proce-
dure Act), and the power to convict of unlawfully cutting,
stabbing, or wounding, given by the 14-15 V., c. 19, s. 5
(section 189, ante), are much better calculated to prove
beneficial than the repealed section."
In the case of R. v. Bird, 2 Den. 94, on the interpretation
of the repealed clause, fourteen judges of the court of
Exchequer were divided eight to six. and the Chief Jus-
tice of England, Lord Campbell, who was one of the
minority, closed his remarks on the case by saying : rt I
hope I may, without impropriety, express a wish that the
Legislature will speedily repeal or explain the enactment
which has caused such confusion. Of course, I am ready
to abandon the construction of it for which I have been
contending, and most respectfully and submissively to be
governed by the opinion of my learned brethren who differ
from me ; but I have not been able to gather from them
any clear and certain rule for my future guidance, and I
am afraid that without the interference of Parliament, not-
withstanding our best efforts to be unanimous, we ourselves,
as well as others, may again find it difficult to anticipate
the result of our deliberations."
This was on the 12th February, 1851, and on the 7th
August of the same year, Parliament repealed the objection-
able clause. In Ontario, it has been held that under this
clause a verdict of assault upon an indictment for murder or
manslaughter is not legal : R. v. Ganes, 22 U. C. C. P.
185 ; R. v. Smith, 34 U. C. Q. B. 552, whilst in Quebec,
in R. v. Can', 1872, a verdict of assault in a case of man-
slaughter has been given, and received by Chief Justice
Duval.
The following are the most important decisions in England
on the interpretation of this clause.
870 PROCEDURE ACT.
In a joint indictment for felony, one may be found guilty
of the felony, and the other of assault under this clause. —
R. v. Archer, 2 Moo. C. G. 283. In an indictment for
felony, a conviction cannot be given under this clause of an
assault completely independent and distinct, but only of
such an assault as was connected with the felony charged.
— R. v. Gutteridge, 9 C. & P. 471 ; and this interpreta-
tion was admitted as undoubtedly right in R. v. Phelps,
2 Moo. C. C. 240 (see post), and by the fourteen judges
in R. v. Bird. The case of R. v. Pool, 9 C. & P.
728, where Baron Gurney held that if a felony was
charged and a misdemeanor of an assault proved, the
defendant might be convicted of the assault, although that
assault should not be connected with the felony, stands,
therefore, overruled. In R. v. Boden, 1 C. & K. 395, it
was held that on an indictment for assaulting with intent
to rob, if that intent is negatived by the jury, the prisoner
may be convicted of assault under this enactment. In R.
v. Birch, 1 Den. 185, upon a case reserved, it was held
that upon an indictment for robbery, the defendant, under
this clause, may be found guilty of a common assault.
The judges thought, upon consulting all the authorities,
that this enactment was not to be confined to cases where
the prisoner committed an assault in the prosecution of an
attempt to commit a felony, nor was it to be extended to
all cases in which the indictment for a felony on the face of
it charged an assault. See also R. v. Ellis, 8 0. & P. 654.
But they were of opinion that, in order to convict of an
assault under this section, the assault must be included in
the charge on the face of the indictment, and also be part
of the very act or transaction which the crown prosecutes
as a felony by the indictment. And it was suggested that
it would be prudent that all indictments for felony includ-
PROCEDURE ACT, S71
ing an assault, should state the assault in the indictment.
Our clause, however, has the words "although an assault
be not charged in terms " which were not in the E.
act.
In R.\. Greenwood, 2 C. <£ K. 339, it was held by Wight-
man, J., that if on an indictment for robbery with violence
the robbery was not proved, the prisoner could not be found
guilty of the assault only, under this clause, unless it
appeared that such assault was committed, in the progress
of something which, when completed, would be, and with
intent to commit, a felony.
In R. v. Held, 2 Den. 88, it was held by five judges that
the verdict of assault allowed by this clause must be for
an assault as a misdemeanor, and not for a felonious assault,
and this has never since been doubted.
In R. v. St. George, 9 C. & P. 491, the prisoner was
charged with attempting to fire a pistol with intent, etc.
The question was whether the prisoner could be convicted
of an assault committed with his hand prior to ha\ ing
drawn out the pistoL Baron Parke held that the prisoner
could only be found guilty of that assault which was
involved in and connected with firing the pistol.
In R. v. Phelps, 2 Moo. C. C. 240, the prisoner with
others was indicted for murder. It was proved that Phelps,
in a scuffle, struck the deceased once or twice and knocked
him down ; that after this, Phelps went away to his own
home and took no further part in the affray ; that, about
a quarter of an hour afterwards, the deceased, on the same
spot, was again assaulted by other parties, and received
then an injury of which he died on the spot. On these
facts the jury acquitted Phelps of the felony, and found
him guilty of the assault. But the judges were unani-
mously of opinion that the conviction was wrong, as for a
872 PROCEDURE ACT.
verdict of assault under the clause mentioned, the assault
must be such as forms one constituent part of the greater
charge of felony, not a distinct and separate assault as this
was.
In R. v. Crumpton, C. & M. 597, Patteson, J., held
that, in manslaughter, a jury should not convict a prisoner
of an assault unless it conduced to the death of the decea-
sed, even though the death itself was not manslaughter.
See also R. v. Connor, 2 G. & K. 518.
In the case of R. v. Bird, 2 Den. 94, already cited, as
the final blow to the enactment in question, in England,
the court, on the following division, decided that on an
indictment for murder or manslaughter, the prisoner, under
the said clause, cannot be convicted of an assault :
Against tlie conviction. For the conviction.
Pollock, C. B. Lord Campbell, C. J,
Patteson, J. Jervis, C. J.
Coleridge, J. Parke, B.
Wightman, J. Alderson, B.
Cresswell, J. Maule, J.
Erie, J. Martin, B.
V. Williams, J.
Talfourd, J.
In the case of R. v. Ganes, 22 TJ.G. G. P. 185, already
cited, the court followed the rule laid down by the majority
in R. v. Bird, and decided that, under the said section
(191) of our Procedure Act, a verdict of assault cannot be
given upon an indictment for murder or manslaughter.
It may be remarked that, in this case, Chief Justice
Hagarty distinctly said that his own individual opinion
was wholly with that of the minority in R. v. Bird, viz.
that, in such cases, a verdict of assault is legal. See also
R. v. Smith, 34 U. C. Q. B. 552.
PROCEDURE ACT. 873
In Quebec, in the cases of R. v. Carr (2nd case,) R. v.
Wright, R. v. Taylor, and upon indictments charging
either murder or manslaughter, verdicts of " guilty of
assault " have been given, and received, unquestioned.
In R. v. Walker (Salacha case,) Quebec, 1875, for man-
slaughter, Dorion, C. J., charged the jury that they were at
liberty to return a verdict of common assault.
Upon an indictment for rape or for an assault with intent
to commit rape, under sees. 37, 38, of c. 162, see p. 197,
ante, a boy under the age of fourteen years may be convicted
of an assault under the said section 191 of the Procedure
Act.— R. v. Brimiloic, 2 Moo. C. C. 122.
Upon an indictment, under sec. 8, c. 162, p. 147, ante, for
feloniously assaulting with intent to murder, a verdict of
common assault may be given under the said section of
the Procedure Act. — R. v. Cruse, 2 Moo. C. C. 53 ; R. v.
Archer, 2 Moo. C. C. 283. If a man has carnal knowledge
of a woman by a fraud which induces her to suppose it is
her husband, upon an indictment for rape, he must be
acquitted of the felony, but may, under the said section of
the Procedure Act, be convicted of an assault. — R. v. Saun-
ders, 8 C. & P. 265 ; R. v. Williams, 8 C. & P. 287.
(This is rape now in England by statute of of 1885.)
But to authorize such a verdict, the felony charged must
necessarily include an assault on the person, and, for
instance, on an indictment for administering poison with
intent to murder, a verdict of assault cannot be given under
this clause. Nor can it be given on an indictment for bur-
glary with intent to ravish. — R. v. Watting 2 Moo. C. C.
217; R. v. Dilworth. 2 M. & Roh. 531; R. v. Draper, 1
C. <k K. 176 ; but such a verdict may be given, if the
indictment charges an assault, and the wilfully adminis-
tering of deleterious drugs. — R. v. Button, 8 C. <fc P. 660.
874 PROCEDURE ACT.
The authorities on the question are sufficiently clear as
to one point, viz., that, under this section of the Procedure
Act, in all cases of felonies, which include an assault
against the person, although an assault be not charged in
terms, the jury may acquit of the felony, if such is not
proved, and find a verdict of assault against the defendant,
if the evidence warrants it ; that is to say, if an assault
forming part of the very act or transaction which the
crown prosecutes as a felony by the indictment has been
proved.
It is true that as to indictments for murder or man-
slaughter, R. v. Phelps and R. v. Bird, in England, and
R. v. Ganes, in Ontario, are given by the reporters as rul-
ing, as an abstract principle, that in no case of murder or
manslaughter a verdict of assault can be given under this
section ; but a careful consideration of these cases will
show that they do not bear such an interpretation.
In the first of these cases, R. v. Phelps, as already
stated, it was decided that, upon an indictment for murder,
the defendant cannot, under this clause, be convicted of
an assault entirely separate and distinct from the felony
charged ; it was there proved that when the deceased was
killed, when the murder was committed, the defendant
was away from the spot and had been gone for a quarter
of an hour ; the judges decided that, upon this evidence,
the defendant could not be convicted of an assault, though
an assault had been proved to have been committed by
him on the deceased a quarter of an hour before the mur-
der took place. And this ruling has never since been
questioned ; it is not because a felony involves an assault
that the defendant can be convicted of any assault what-
ever, committed on the same person ; if in the course of
the evidence, the witnesses happen to disclose crimes
PROCEDURE ACT. 875
entirely distinct and disconnected from the offence charged,
the jury are not thereby authorized to adjudge on any-
thing else but the facts forming part of the crime laid in
the indictment. The assault which can be found cannot
be any other assault than the one necessarily accompany-
ing the crime charged, and forming an integral part of it,
as in P. v. Brimilow ; P. v. Cruse; R. v. Birch, etc.,
ante. So much for it!, v. Phelps, which is clearly far from
supporting the proposition that a verdict for assault cannot,
under any ciicumstances, be found in cases of murder or
manslaughter.
Then comes P. v. Bird. It is an error to cite this
case as deciding anything else than the case of P. v.
Phelps. It is based on the following facts : The prisoner's
were indicted for the murder of Mary Ann Parsons, by
striking and beating her. It was proved on the trial that
Mary Ann Parsons' death, on the 4th of January, 1850,
was caused exclusively by one particular blow on the head,
inflicted shortly before her death, but there being no evi-
dence that the fatal blow had been struck by either of the
prisoners, they were acquitted ; during the course of the
trial, it had been proved that the prisoners had committed
different assaults on the deceased in the two months pre-
ceding her death, but that none of these assaults were con-
nected with her death. The majority of the court held,
that on these facts, a verdict of assault could not be given
against the prisoners. And why ? Because the assaults
committed by them on Mary Ann Parsons during the two
months preceding her death were not included in the
crime charged in the indictment, but were totally different
and distinct offences ; because the only assault included
in the indictment was the particular blow which had caused
her death, and as they were found not guilty of having
876 PROCEDURE ACT.
given that particular blow, they were entitled to a full
acquittal, and the jury had not the right to say : " It is
true that the assault which caused Mary Ann Parsons'
death has not been proved to have been committed by the
prisoners, but other assaults previously committed by
them on the deceased have been proved, and we will take
this occasion to find the defendants guilty of these, though
they were only accused, in this case, of the particular
blow which caused the death."
It is obvious that this would be trying a man for one
offence, and finding him guilty of another. That is what
the court refused to do in that case of JR. v. Bird, and a
reference, as infra, to the remarks of the following judges
who form part of the majority will show that they followed
Phelj)s' case, without going an inch further :
Talfourd, 2 Den pp. 147, 148
Williams, " " 157, 158
Cresswell, " " 164, 165
Wightman, " " 168, 169
Coleridge, " " 180, 181
Patteson, " " 183, 187
None of these learned judges said that a verdict for
assault can never be given on an indictment for murder or
manslaughter. Indeed, it will be found that they all
appear to think such a result possible.
Wightman, J., distinctly says : " If in the present case,
it had appeared that, at the time the mortal injury was
received, the prisoners were with the deceased, and had
assaulted and beaten her immediately before, but that the
evidence raised a doubt whether the mortal injury was
occasioned by blows, or by a fall which might be attributed
to accident, and on that ground the jury had acquitted the
PROCEDURE ACT. 877
prisoners of felony, I should think that they might be
convicted of assault under the statute, for in that case, the
assault proved would have been involved in, and formed
part of the act or transaction charged as a felony in the
indictment, and prosecuted as such."
And Jervis, C. J. (one of the minority,) says : " If it
had been proved that the child had not died, it is admitted
that the prisoners might have been convicted of assault
upon this indictment for murder. If the death resulted
from natural causes, it is admitted that the prisoners might
have been convicted of assault upon this indictment for
murder."
In the Ontario case of R. v. Ganes, see ante, the facts
were almost similar to those in R. v. Bird, and the only
ruling in the case is that where upon an indictment for
murder, the prisoners are proved to have, at different times
before the death of the deceased, committed on him
various assaults, yet they cannot be found guilty of these
assaults, and must be acquitted, altogether, if it is proved
that these assaults were not connected with the death of
the deceased ; but, on the contrary, that the deceased died
from a burning, with which the prisoners were not con-
nected. Here, as in Phelps' and Bird's cases, the only-
question decided is that upon an indictment for murder or
manslaughter, the defendant cannot be found guilty of any
offence not included in the crime charged, viz., of an
assault committed at another time than the offence
charged, of any other assault than the one which the pro-
secution charged, as a felony.
And the judges, who formed the minority in Bird's case,
did not intend to overrule R. v. Phelps, but thought one
case distinguishable from the other.
But it is said, and this reasoning is adopted by Mr.
878 PKOCEDURE ACT.
Justice Gwynne, in R. v. Oanes, that, as in murder or
manslaughter, the only assault charged in the indictment
is the one which conduced to the death of the deceased, if
the prisoner is guilty of an assault, he is guilty of the
felony, and cannot, in respect of that assault, be convicted
of assault merely ; and that if the assault proved does not
conduce to the death, it is distinct from and independent
thereof, and is, therefore, not included in the crime charged ;
and, therefore, that no verdict of assault can be rendered
upon an indictment for homicide, in respect of such an
assault.
When different assaults are brought out by the prosecu-
tion, in the course of the evidence, as supposed by Erie,
J., in his remarks in Bird's case, and as was the case in
R. v. Phelps, R. v. Bird, and R. v. Ganes, this opinion
seems to be unassailable. But when the defendant is
accused of having, on a certain occasion, killed a person,
by, for instance, striking him in the chest, cannot the
jury say : " We find that, on the occasion specified, the
defendant did strike the deceased, but we do not think it
proved by the prosecution that the deceased died of this
blow." How can it be said that the crime charged is the
assault connected with the death, and that of the assault
connected with the death only the prisoner can be found
guilty, or else be acquitted altogether ? This reasoning
would render the clause wholly inoperative in cases of
homicide. And when the clause says " for any felony
whatever," it expressly includes murder or manslaughter.
Moreover this interpretation would make the clause say
that when a felony is proved, a verdict of assault can be
returned. This would be absurd, and the law does not
say it ; quite the contrary, such a finding is allowed only,
if the evidence warrants it. The clause must be read, in
PROCEDURE ACT. 879
cases of homicide, as if it said : " On the trial of any
person for murder or manslaughter, where the homicide
charged includes an assault against the person, although
an assault be not charged in terms (and no assault is now,
in such cases, charged in terms), the jury may acquit of the
felony, and find a verdict of guilty of assault against the
defendant, if the defendant's act which the prosecution
called a felcny has been proved to be only an assault."
The clause, indeed, says, in express terms, that in such a
case, there must be an acquittal for a part, i.e., "may
acquit of the felony," and a conviction for another part, i.e.,
"may find a verdict of assault," showing the operation it
authorizes, of first divesting the act charged against the
defendant of the felonious character which the prosecution
endeavoured to put upon it, if the evidence warrants it,
and secondly, of finding the same act to be an assault, if
the evidence warrants it.
Any other interpretation gives to the clause an absurd
sense, and the rule is that of two possible interpretations
of a statute, the one which gives it a reasonable and
practicable sense is to be preferred to any other, which
would make it absurd and inoperative.
In a case of R. v. Ding, nan, 22 U. C. Q. B. 283, it
was held that, under s. 66, c. 99, of the Consolidated
Statutes of Canada, there could be no conviction for an
assault, unless the indictment charged an assault in terms,
or a felony necessarily implying an assault; but the
insertion of the words " although an assault be not charged
in terms," in sec. 191 of the Procedure Act, renders this
ruling now inapplicable, if it was ever correct.
In New Brunswick, the repealed statute, 1 Eev. Stat.,
c. 149, s. 20, enacted that: "Whoever, on a trial for
murder or manslaughter, or any other felony which shall
880 PROCEDURE ACT.
include an assault, shall be convicted of an assault only,
shall be imprisoned for any term not exceeding three years,
or fined at the discretion of the court."
In R. v. Cregan, 1 Hannay, 36, on an indictment for
murder, the jury found the prisoner guilty of an assault
only, but that such assault did not conduce to the death of
the deceased. The court held this conviction illegal, and
not sustained by the above statute.
In R. v. Cronan, 24 U. C. C. P., 106, the Ontario
Court of Common Pleas held that upon an indictment for
shooting with a felonious intent, the prisoner, if acquitted
of the felony, may be convicted of a common assault, and
that to discharge a pistol loaded with powder and wadding,
at a person, within such a distance that he might have
been hit, is an assault.
In R. v. Goadby, 2 G. & K. 782, it appears to have
been held that a verdict of assault cannot be received on
an indictment for feloniously stabbing with intent to do
grievous bodily harm, but this case seems very ques-
tionable, says Greaves, note d, 2 Russ. 63.
The case of R. v. Dungey, 4 F. &. F. 99, where it was
held that after an acquittal upon an indictment for rape,
the prisoner may be indicted for a common assault, is not
law in Canada, under sec. 191 of the Procedure Act.
Held, by Weldon, Wetmore and King, J. J., (Allen, C. J.,
and Duff, J., dis.), that on an indictment for murder in the
short form given in schedule A. to c. 29 of 32-33 V., a
prisoner cannot be convicted of an assault under s. 51 of
that chapter.
Held, also, by all the judges, that the fact of the pris-
oner's counsel having, at the trial, consented that he could
be convicted, and requested the judge so to direct the jury,
did not preclude him from afterwards objecting to the
PROCEDURE ACT. 881
validity of the conviction on this ground. — The Queen v.
Mulholland, 4 P. & B. (X. B.) 512.
Greaves' note to R. v. Phillips, 3 Cox, 226.
" It may admit of some doubt whether the construction
of s. 11 of the 1 V., c, 85, is finally settled. The framer
of the clause probably intended that the clause should
apply to those cases where, upon an indictment for a felony,
including an assault, the jury should acquit on the ground
that the felony, although attempted, was not completed.
But if such were the intention, the words do not so clearly
express it as they ought, as they authorize the jury to
convict 'of assault' on any indictment for felony ' where
the crime charged shall include an assault.' These words
are so general that they might include any assault, whether
at the time of the felony charged or not ; and the learned
judges have therefore been obliged to put some limitation
upon them, an I the proper limitation seems to be that
which has been put upon them by the very learned Baron
in R. v. St. George, namely that the assault must be an
assault involved in and connected with the felony charged ;
and it is submitted that it must be such an assault as is
essential to constitute part of the crime charged. A felony
including an assault may be said to consist of the assault,
the intent to commit the felony, and the actual felony.
Thus in robbery there is the assault, the intent to rob, and
the actual robbery ; and in such a case it is submitted the
assault, of which the prisoner may be convicted, must be
such an assault as constitutes one step towards the proof
of the robbery. Upon this the question arises whether an
assault, where the jury negative any intention to commit
a felony, is within the section, and it is submitted that it is
not, as such an assault cannot be said to be involved in or
connected with the felony charged in any manner what-
GGG
882 PROCEDURE ACT.
soever. It is true that an assault is included in the felony
but it is an assault coupled with an intent, and if the jury-
negative the intent, such an intent in no way tends to
prove the felony; and it certainly would be a great
anomaly if the prisoner were indicted for a felony, and the
jury found he had no intention of committing a felony,
that he might be sentenced to three years imprisonment
and hard labor, while if he had been indicted for the
offence of which he was really guilty, he could only be
sentenced to three years imprisonment without hard labor
R. v. Ellis (8 C. & P, 654), therefore seems deserving of
reconsideration, and the more so as it was decided before
R. v. Guttridge (9 C. & P. 471), R. v. St. George, (9 G.
& P. 483), R. v. Phelps (Gloucester Sum. Ass. M. S.
cited 1 Russ. 7 Si). The intention, no doubt, was to punish
attempts to commit felonies, including assaults, and it is
to be regretted that the provision, instead of being what it
is, was not that upon any indictment for felony, if the jury
should think that the felony was not completed, they
might find the prisoner guilty of an attempt to commit the
felony charged in the indictment."
In that case of R. v. Phillips, four persons were indicted
for a felony. Three were found guilty of the felony, and
one of common assault.
Under s. 36, c. 162, p. 184, ante, common assault is
punishable with one year's imprisonment. Under the above
sec. 191 of the Procedure Act, an assault found upon an
indictment for felony is punishable with five years' impri-
sonment.
192. If, upon the trial of any person upon an indictment for
robbery, it appears to the jury, upon the evidence, that the accused
did not commit the crime of robbery, but that he did commit an
assault with intent to rob, the accused shall not, by reason thereof, be
entitled to be acquitted, but the jury may find him guilty of an assault
PROCEDURE ACT. 883
with intent to rob ; and thereupon he shall be liable to be punished in
the *ame manner as if he had been confine i upjn an indictment for
felouiously assaulting with intent to rob ; and no person so tried, a> ig
herein lastly mentioned, shall be liable to be afterwards prosecuted for
an assault with intent to commit the rubbery for wbich he wa* so
tried.— 3^-33 V., c. 21, s. 40. 24-25 F., c. 96, «. 41, Imp.
See sees. 32-33 of Larceny Act, p. 315 ante. Under such
a verdict, the punishment is as provided for in sec. 33 of the
Larceny Act, or sec. 34, thereof, if the indictment is under
the said clause. See page 331, ante.
This clause was introduced in consequence of the case
of R. v. Reid, 2 Den. 88. There seems no doubt that on
an indictment properly framed, that is to say, charging an
assault with intent to rob and a robbery, that the defen-
dant might have been convicted of the assault with intent
to rob, just in the same way as upon an indictment for
burglary charging a breaking with intent to steal and
stealing the defendant may be convicted of breaking with
intent to steal But it was thought better to provide for
this case by express enactment, in order to prevent any
doubt on the matter — Greaves' note.
See R. v. Mitchell, 2 Den. 468 ; Dears. 19.
193. Every one who is indicted for any burglary, where the
breaking and entering are proved at the trial to have been made in
the day-time, and no breaking out appears to have been made in the
night-time, or where it is left doubtful whether such breaking and
entering or breaking out took place in the day or night-time, shall be
acquitted of the burglary, but may be convicted of the offence of
breaking and entering the dwelling-house with intent to commit a
felony therein. — 32-33 V ., c. 21, s. 57.
This clause is not in the English Act.
See sec. 42, Larceny Act, p. 365, ante.
194. It shall not be available, by way of defence, to a person
charged with the offence of breaking and entering any dwelling-house,
church, chapel, meeting-house or other place of divine worship, or
884 PROCEDURE ACT.
any building within the curtilage, school-house, shop, warehouse or
counting-house, with intent to commit any felony therein, to show
that the breaking and entering were such as to amount in law to
burglary : Provided, that the offender shall not be afterwards prose-
cuted for burglary upon the same facts; but it shall be opened to the
court before which the trial for such offence takes place, upon the
application of the person conducting the prosecution, to allow an
acquittal on the ground that the offence, as proved, amounts to bur-
glary; and if an acquittal takes place on such ground, and is so
returned by the jury in delivering its verdict, the same shall be
recorded together with the verdict, and such acquittal shall not then
avail as a bar or defence upon an indictment for such burglary,
—32-33 V., c. 21, s. 58.
This clause is not in the Imperial Act.
See sec. 42 of Larceny Act, p. 365, ante.
19o. If, upon the trial of any personjindicted for embezzlement or
fraudulent application or disposition of any chattel, money or valuable
security, it is proved that he took the property in question in any such
manner as to amount in law to larceny, he shall not by reason thereof
be entitled to be acquitted, but the jury may acquit the accused of
embezzlement or fraudulent application or disposition, and find him
guilty of simple larceny or larceny as a clerk, servant or person em-
ployed for the purpose or in the capacity of a clerk or servant, or as a
person employed in the public service, as the case may be, and there*
upon the accused shall be liable to be punished in the same manner
as if he had been convicted upon an indictment for such larceny; and
if, upon the trial of any person indicted for larceny, it is proved
that he took the property in question in any such manner as to
amount in law to embezzlement or fraudulent application or dispo-
sition as aforesaid, he shall not, by reason thereof, be entitled to be
acquitted, but the jury may acquit the accused of larceny, and find
him guilty of embezzlement or fraudulent application or disposition,
as the case may be, and thereupon the accused shall be liable to be
punished in the same manner as if he had been convicted upon an
indictment for such embezzlement, fraudulent application or dispo-
sition ; and no person so tried for embezzlement, fraudulent application
or ili-position, or larceny as aforesaid, shall be liable to be afterwards
prosecuted for larceny, fraudulent application or disposition, or embez-
zlement upon the same facts.— 32-33 V., c. 21, s. 74. 24-25 V., c 96,
s. 72, Imp.
See remarks under sec. 52 of Larceny Act, p. 383, ante.
PROCEDURE ACT. 885
Also Stephens' Or. L., XXXIX, and R. v. Rudge, 13
Cox, 17.
The distinction between embezzlement and larceny by
a servant is so fine that it was thought proper by this
section to prevent an acquittal in case upon the trial of an
indictment for the one if it should turn out that the offence
amounted in point of law to the other. The distinction
between the two offences is this, if the servant received
the property and converted it to his own use before it
came to the possession of the master, the offenc3 is
embezzlement. If the property had come to the possession
of the master, and the servant afterwards converted it to
his own use, it is larceny. Thus, if a shopman received
money and converted it to his own use immediately, this
was embezzlement; but if he put it in the till or other
depository, and afterwards abstracted it, this was larceny.
R. v. Grove, 1 Moo. C. C. 447. It is somewhat singular
that it should never have been decided whether, upon an
indictment for larceny, the defendant might not be
convicted of embezzlement ; inasmuch as the 7-8 Geo. 4,
c 29, s. 47, enacts, that every person guilty of embezzling
any property " shall be deemed to have feloniously stolen
the same : " which would seem well to have warranted a
conviction for embezzlement upon a count for larceny as
a servant. — Greaves' Note.
196. If, upon the trial of any person indicted for obtaining from
any other person, by any false pretence, any chattel, money or valu-
able security, with intent to defraud, it is proved that he obtained the
property in question in any such manner as to amount in law to lar-
ceny, he shall not, by reason thereof, be entitled to be acquitted of
such misdemeanor ; and no person tried for such misdemeanor shall
be liable to be afterwards prosecuted for larceny upon the same facts.
—32-33 V., c. 21, s. 93, part. 24-25 F., c 96, s. 88, Imp.
See remarks under sec. 77 of Larceny Act, p. 420, ante.
886 < PROCEDURE ACT.
197. If, upon the trial of any person for any misdemeanor, under
any of the provisions of sections sixty to seventy-six both inclusive, of
" The Larceny Act" it appears that the offence proved amounts to
larceny, he shall not by reason thereof be entitled to be acquitted of
the misdemeanor.— 32-33 V., c 21, s. 92, part. 20-21 V., c. 54, s. 14,
Imp. (repealed).
This clause is not in the Imperial Act.
See sect. 184 of this act, ante, which covers this same
enactment.
198. If, upon the trial of any person for larceny, it appears that
the property taken was obtained by such person by fraud, under cir-
cumstances which do not amount to such taking as constitutes larceny,
such person shall not by reason thereof be entitled to be acquitted, but
the jury may acquit the accused of larceny, and find him guilty of
obtaining such property by false pretences, with intent to defraud, if
the evidence proves such to have been the case, and thereupon the
accused shall be punished in the same manner as if he had been con-
victed upon an indictment for obtaining property by false pretences,
and no person so tried for larceny as aforesaid shail be afterwards
prosecuted for obtaining property by false pretences upon the same
facts.— 32-33 V., c. 21, s. 99.
See remarks under sec. 77 of Larceny Act, p. 420,
ante.
Sec. 196, ante, is the converse of this Sec. 198.
This very important clause is not in the English Act.
It was in the 14-15 V., c. 100, as the bill was intro-
duced, but was struck out. In R. v. Adams, 1 Den. 38,
the judges held the conviction wrong, because the indict-
ment was for larceny, and the facts established an obtaining
by false pretences ; now, under the above clause, the jury,
in such a case, may find the defendant guilty of the
obtaining by false pretences.
See Stephens' Cr. L., XXXIX.
199. If any indictment containing counts for feloniously stealing
any property, and for feloniously receving the same, or any part or
parts thereof, knowing the same to have been stolen, has been prefer-
PROCEDURE ACT. 887
red and found against any person, the prosecutor shall not be put to
his election, but the jury may find a verdict of guilty, either of steal*
ing the property or of receiving the same, or any p^rt or part* thereof,
knowing the same to have been stolen ; and if such indictment has
been preferred and found against two or more persons, the jury may
find all or any of the said persons guilty either of stealing the property
or receiving the same, or any part or parts thereof, knowing the same
to have been stolen, or may fin 1 one or more of the said persons guilty
of stealing the property, and the other or others of them guilty of
receiving the same, or any part or parts thereof, knowing the same to
have been stolen.— 32-33 V., c. 21, s. 101, part. 24-25 F., c. 96, s. 92,
Imp.
See sec. 82, et seq. of Larceny Act, p. 443, ante.
The prisoner was convicted of receiving stolen goods on
an indictment containing two counts, one for stealing the
goods and the other for receiving them knowing them to
have been stolen. He had, on a former da)7 in the same
circuit, been indicted for stealing the same goods as those
which he was charged with stealing by the first count of
the present indictment. A jury was impannelled and
the trial of the prisoner begun, but in consequence of it
appearing by the testimony that the prisoner could not
be convicted for larceny, the clerk of the crown, who was
conducting the prosecution by direction of the attorney
general, entered a nolle pros., and then sent another bill
before the grand jury containing a count for receiving,
being the indictment on which the conviction took place,
and on the second trial he consented that the prisoner
should be acquitted of the charge of stealing alleged in the
first count, and he was acquitted accordingly, —
Held, on a case reserved.
1. That the clerk of the crown had authority to enter a
nolle pros.
2. That a nolle pros, being entered prisoner could be
again indicted for the sama offence.
PROCEDURE ACT.
3. Even admitting that the clerk of the crown had no
authority to enter a nolle pros., a conviction upon the count
for receiving would be good, each count being a separate
indictment by itself. — The Queen v. Thornton, 2 P. & B>
(N. B.) 140.
200. If, upon the trial of two or more persons indicted for jointly-
receiving any property, it is proved that one or more of such persons
separately received any part or parts of such property, the jury may
convict, upon such indictment, such of the said persons as are proved
to have received any pait or parts of such property. — 32-33 V., c. 21,
s. 103. 24-25 V., c. 96, s. 94, Imp.
See sec. 82 et seq. of Larceny Act, p. 443, ante.
201. See under sec. 85, of Larceny Act, p. 452, ante-
202. If, upon the trial of any indictment for larceny, it appears
that the property alleged in such indictment to have heen stolen at
one time was taken at different times, tlie prosecutor or counsel for
the prosecution shall not, by reason thereof, be required to elect upon
which taking he will proceed, unless it appears that there were more
than three takings, or that more than six months elapsed between
the first and the last of such takings; and in either of such last men-
tioned cases the prosecutor or counsel for the prosecution shall he re-
quired to elect to proceed for such number of takings, not exceeding-
three, as appear to have taken place within the period of six months
from the first to the last of such takings.— 32-33 V., c. 21, s. 6. 24-25
V., c. 96, s. 6, Imp.
The word " month " in this clause means a calendar
month. Interpretation Act, c. 1, Kev. Stat.
The effect of the above and the preceding section is to
restrain the power of the court with respect to the doctrine
of election. The court cannot now put the prosecutor to
his election where the indictment charges three acts of
larceny within six months, or where the evidence shows
that the property was not stolen at more than three diffe-
rent times, and that no more than six months had elapsed
between the first and last of such times. But, on the other
PROCEDURE ACT. 889
hand, the court is not bound by the above section to put
the prosecutor to his election in other cases, but is left to
its discretion, according to the old practice at common law.
— R. v. Jones, 2 Camp. 131 ; R. v. Heyicood, L. &. C.
451.
By means of a secret junction pipe with the main of a
gas company, a mill was supplied with gas, which
did not pass through the gas meter, and which was con-
sumed without being paid for. This continued to be done
for some years. Held, on an indictment for stealing 1000
cubic feet of gas on a particular day, the entire evidence
might be given, as there was one continuous act of stealing
all the time, and that section 6 of the Larceny Act, section
202, supra, as to the prosecutor's electing on three sep-
arate takings within six months, did not apply. — R. v.
Firth, 11 Cox 234.
An indictment charged an assistant to a photographer
with stealing on a certain day divers articles belonging to
his employer. It did not appear when the articles were
taken, whether at one or more times, but only that they
were found in the prisoner's possession on the 17th of
January, 1870, and that one particular article could not
have been taken before March, 1868 ; but the prosecution
abandoned the case as to this article : Held, that this was
not a case in which the prosecutor should be put to elect
upon which articles to proceed, under this section. — R. v.
Henwood, 11 Cox, 526.
On this clause, Greaves remarks :
" Formerly it very often happened on the trial of an
indictment alleging the stealing of a number of articles at
the same time, that it turned out that they had been taken
at different times, in which case the prosecutor was usually
compelled to elect some single taking; such election being
required to be made on the spur of the moment sometimes
890 PROCEDURE ACT.
led to improper acquittals. The present section is intended
to afford a remedy for such cases, and to place such cases
in the same position as the cases provided for by the pre-
vious section. When, therefore, it appears on the trial of
an indictment for stealing a number of goods at the same
time, that the goods were taken at different times, the pro-
secutor is not to be put to elect to proeeed on any particular
taking, unless it appear that there were more than three
takings, or that more than six calendar months intervened
between the first and last of such takings, in which case he
is to elect such takings, not exceeding three, within the
period of six calendar months from the first to the last of
such takings. A suggestion has been made, that in some
extraordinary cases this may unduly limit the evidence on
the part of the prosecution, as it is said that evidence of
only three takings will be admissible. This is a fallacy ;
the clause confines the prosecutor to proceeding to obtain
a conviction for three takings, but it does not at all inter-
fere with the admissibility of any evidence that may in
the opinion of the court tend to explain the nature and
character of any of the takings. If, therefore, a case should
occur where a doubt arose whether the evidence as to one
or more takings shewed that it was felonious, there can be
no doubt that evidence of other takings would be admis-
sible for the purpose of removing such doubt precisely in
the same way as heretofore, but not otherwise. See R. v.
Bleasdale, 2 G. & K. 765. In fact the clause empowers
the prosecutor to proceed for three takings instead of one,
without in any respect otherwise altering the evidence that
may be admissible."
When it appears by the evidence that the felonious
receiving was one continuous act during a certain period
of time, extending over two years, the court will not com-
PROCEDURE ACT. 891
pel the prosecutor to elect, even if it be proved that some
of the articles received by the accused were so received at
divers fixed dates extending over more than six months, and
on more than three occasions. — R. v. Suprani, 13 B. L.
577, 6 L. IT. 269.
203. When proceedings are taken against any person for having
received good?, knowing them to he stolen, or for having in his pos-
session stolen property, evidence may be given, at any stage of the
proceedings, that there was found in the possession of such person
other property stolen within the preceding period of twelve months,
and such evidence may be taken into consideration for the purpose of
proving that such person knew the property which forms the subject
of the proceedings taken against him to be stolen : Provided, that not
less than three days' notice in writing has been given to the person
accused, that proof is intended to be given of such other property
stolen within the preceding period of twelve months, having been found
in his possession • and such notice shall specify the nature or descrip-
tion of such other property, and the person from whom the same waa
stolen— 40 V., c 26, s. 3. 34-35 V., c. 112, s. 19, Imp.
See remarks under sees. 82, 83, 84 of Larceny Act,
p. 443, ante.
The cases of R. v. Oddy, 2 Den. 264 ; R. v. Dunn, 1
Moo. C. C. 146 ; and R. v. Davis, 6 G. & P. 171, are not
now law since the above enactment.
Upon an indictment for receiving stolen goods, evidence
may be given under this section that there was found in
the possession of the prisoner other property stolen within
the preceding twelve months, although such other property
is the subject of another indictment against him. — jR. v.
Jones, 14 Cox, 3.
In order to show guilty knowledge, under this section,
it is not sufficient merely to prove that " other pro-
perty stolen within the preceding period of twelve months •
had at some time previously been dealt with by the pris-
oner but it must be pToved that such ' ' other property "
892 PEOCEDUEE ACT.
was found in the possession of the prisoner at the time
when he is found in possession of the property which is the
subject of the indictment. — R. v. Drage, 14 Cox, 85 ; R.
v. Carter, 15 Cox, 448.
204. When proceedings are taken against any person for having
received goods, knowing them to be stolen, or for having in his pos-
session stolen property, and evidence has been given that the stolen
property has been found in his possession, — then if such person has,
within five years immediately preceding, been convicted of any offence
involving fraud or dishonesty, evidence of such previous conviction
may be given at any stage of the proceedings, and may be taken into
consideration for the purpose of proving that the person accused knew
the property which was proved to be in his possession to have been
stolen : Provided, that not less than three days' notice in writing has
been given to the person accused, that proof is intended to be given of
such previous conviction ; and it shall not be necessary, for the pur-
poses of this section, to charge in the indictment the previous convic-
tion of the person so accused. — 49 V., c. 26, s. 4. 34-35 V., c 112, s.
19, Imp.
See Larceny Act, sees. 82, 837 84, p. 443, ante, and
remarks under preceding section.
205. See p. 535, ante, under c. 167, " offences relating to the coin"
206. See p. 37, ante, c. 147, " An act respecting riots, etc.
PEOCEEDINGS WHEN PEEVIOUS OFFENCE CHAEGED.
207. The proceedings upon any indictment for committing any
offence after a previous conviction or convictions shall be as follows,
that is to say : the offender shall, in the first instance, be arraigned
upon so much only of the indictment as charges the subsequent
offence, and if he pleads not guilty, or if the court orders a plea of
not guilty to be entered on his behalf, the jury shall be charged, in
the first instance, to inquire concerning such subsequent offence only;
and if the jury finds him guilty, or if, on arraignment, he pleads guilty,
he shall then, and not before, be asked whether he was so previously
convicted, as alleged in the indictment, and if he answers that he was
bo previously convicted, the court may proceed to sentence him accord-
ingly, but if he denies that he was so previously convicted, or stands
mute of malice, or will not answer directly to such question, the jury
PROCEDUKE ACT. 893
shall then be charged to inquire concerning such previous conviction
or conviction?, and in such case it shall not be necessary to swear the
jury again, but the oath already taken by them shall, for all purposes
be deemed to extend to such last mentioned inquiry: Provided, that
if upon the trial of any person for any such subsequent offence, such
person gives evidence of his good character, the prosecutor may, in
answer thereto, give evidence of the conviction of such person lor the
previous offence or offences, before such verdict of guilty is returned,
and the jury shall inquire concerning such previous conviction or
convictions at the same time that they inquire concerning such
subsequent offence. — 32-33 F., c. 29, s. 26, part.
See R. v. Earley, 8 L. C. J. 280.
Also R. v. Martin, 11 Cox, 343.
R. v. Thoraas, 13 Cox, 52, and remarks under s. 139,
ante, also, s. 230, pott.
IMPOUNDING DOCUMENTS.
208. Whenever any instrument which has been forged or frau-
dulently altered is admitted in evidence, the court or the judge or
person who admits the same may, at the request of any person against
whom the same is admitted in evidence, direct that the same shall be
impounded and be kept in custody of some officer of the court or
other proper person, for such period, and subject to such conditions, as
to the court, judge or person admitting the same, seems meet. — 32-33
F., c. 19, s. 36.
This clause is not in the Imperial Act. It was taken
from the Consolidated Statutes for Upper Canada, c. 101,
s. 2.
DESTROYING COUNTERFEIT COIN.
209. If any false or counterfeit coin is produced in any court, the
court shall order the same to be cut in pieces in open court, cr in the
presence of a justice of the peace, and then delivered to or for the
lawful owner thereof, if such owner claims the same. — 32-33 T'., c. 18,
a- 28.
Not in the Imperial Act.
It applies to all courts, civil and criminal.
894 PROCEDURE ACT.
WITNESSES AND EVIDENCE.
210. Every witness duly subpoenaed to attend and give evidence
at any criminal trial before any court of criminal jurisdiction shall
be bound to attend and remain in attendance throughout the trial. —
39 F.,c. 36, s. 1.
211. Upon proof to the satisfaction of the judge, of the service of
the subpoena upon any witness who fails to attend or remain in
attendance, and that the presence of such witness is material to the
ends of justice, he may, by his warrant, cause such witness to be
apprehended and forthwith brought before him to give evidence and
to answer for his disregard of the subpoena ; and such witness may
be detained on such warrant before the judge or in the common gaol,
with a view to secure his presence as a witness, or, in the discretion
of the judge, he may be released on a recognizance with or without
sureties, conditioned for his appearance to give evidence and to
answer for his default in not attending or not remaining in attendance ;
and the judge may, in a summary manner, examine into and dispose
of the charge against such witness, who, if he is found guilty thereof,
shall be liable to a fine not exceeding one hundred dollars, or to
imprisonment, with or without hard labor, for a term not exceeding
ninety days, or to both. — 39 V., c 36, s. 2.
As to re-calling witnesses, see M. v. Lamere, 8 L. C. J.
181; R. v. Jennings, 20 L. C.J. 291; 2 Taylor, Ev.,
par. 1331.
212. If any witness in any criminal case, cognizable by indict-
ment in any court of criminal jurisdiction at any term, sessions or
sittings of any such court in any part of Canada, resides in any part
thereof, not within the ordiuary jurisdiction of the court before which
such criminal case is cognizable, such court may issue a writ of sub-
poena, directed to such witness, in like manner as if such witness was
resident within the jurisdiction of the court; and if such witness does
not obey such writ of subpoena, the court issuing the same may pro-
ceed against such witness for contempt or otherwise, or bind over such
witness to appear at such days and time as are necessary, and upon
default being made in such appearance, may cause the recognizances
of such witness to be estreated, and the amount thereof to be sued for
and recovered by process of law, in like manner as if such witness
was resident within the jurisdiction of the court. — 32-33 V.y c. 29,
3.59.
PROCEDURE ACT. 895
213. When the attendance of any person confined in any peniten-
tiary or in any prison or gaol in Canada, or upon the limits of any
gaol, is required in any court of criminal jurisdiction in any case
cognizable therein by indictment, the court before whom such pris-
oner is required to attend may, or any judge of such court, or of any
superior court or county court, may, belbre or during any such term
or sittings at which the atten lance of such person is required, make
an order upon the warden of the penitentiary, or upon the sheriff,
gaoler or other person having the custody of such prisoner, to deliver
such prisoner to the person named in such order to receive him ; and
Buch person shall, at the time prescribed in such order, convey such,
prisoner to the place at which such person is required to attend, there
to receive and obey such further order as to the said court seems
meet.— 32-33 T'., c. 29, a. 60.
At common law, writs of subpoena have no force beyond
the jurisdictional limits of the court fron which they issue,
but, by the above clause, any court of criminal jurisdiction
in Canada may summon a witness from any other part of
Canada, for instance, a criminal court in Quebec can sum-
mon a witness in Nova Scotia, or vice versd, and if the
subpcena is not obeyed, the court may proceed against the
witness in like manner as if such witness were resident
within the jurisdiction of the court. In England, the 46
Geo. Ill, c. 92, contains a provision of the same nature.
In criminal cases the witness is bound to attend, even if he
has not been tendered his expenses. — 3 Russ. 575 ; Roscoe,
Ev., 104.
Sec. 213 renders unnecessary, in criminal matters, the
writ of habeas corpus ad testificandum. It seems to go
very far, and might lead to serious consequences ; it, for
instance, authorizes a judge of the court of quarter ses-
sions, or of the county court in any part of the Dominion,
to order the removal of a prisoner from any other part of
the Dominion. Moreover, this removal is not, as in Eng-
land, to be made under the same care and custody as if
the prisoner was brought under a writ of habeas corpus, and
896 PROCEDURE ACT.
by the officer under whose custody the witness is, but by
any other person named by the judge in his order, thereby,
against all notions on the subject, releasing for a while a
prisoner from the custody of his gaoler, who, of course,
ceases, pro tempore, to be responsible for his safe keeping.
The Imperial act on the subject is the 16-17 V., c. 30,
s. 9. Though our statute does not expressly require it,
an affidavit stating the place and cause of confinement of
the witness, and further that his evidence is material, and
that the party cannot, in his absence, safely proceed to
trial, should be given in support of the application. And if
the prisoner be confined at a great distance from the place
of trial, the judge will, perhaps, require that the affidavit
should point out in what manner his testimony is material.
—2 Taylor, Ev., par. 1149.
214. No person offered as a witness shall, by reason of any alle-
ged incapacity from crime or interest, be excluded from giving evi-
dence on the trial of any criminal case, or in any proceeding relating
or incidental to such case. — 32-33 V., c. 29, s. 62, and c. 19, s. 54,
part.
215. Every person so offered shall be admitted and be compel-
lable to give evidence on oath, or solemn affirmation, where an affir-
mation is receivable, notwithstanding that such person has or may
have an interest in the matter in question, or in the event of the trial
in which he is offered as a witness, or of any proceeding relating or
incidental to such case, and notwithstanding that such person so
offered as a witness has been previously convicted of a crime or
offence.— 32-33 V., c. 29, s. 63.
These two clauses are taken from the 6-7 V., c. 85, s,
1, of the Imperial statutes.
At common law, persons convicted of treason, felony,
piracy, perjury, forgery, etc., were not admitted as witnes-
ses. It was also a general rule of evidence not to admit
the testimony of a witness who was interested, either di-
rectly or indirectly, in the event of the trial. These inca-
pacities are now removed by the above enactments.
PROCEDURE ACT. 897
In R. v. Clements Toronto, 1876) for murder, the
crown called as a witness a man who had been sentenced
to death, but whose sentence had been commuted to one
for Penitentiary for life, which he was then serving.
Gait, J., (after consulting Hagarty, J.,) admitted his
evidence, saying that he would reserve the objection to it,
but the prisoner was acquitted.
In the case of R. v. Webb, 11 Cox, 133, Lush, J., held,
that, notwithstanding the last part of section 215, ante, a
person under sentence of death is incapable of being a
witness. The evidence of such a witness cannot in any case
be of much weight, since he is not liable to the temporal
punishments attached to perjury. See 2, Taylor Ev., par.
1169, note.
Where several prisoners are jointly indicted, and one of
them is convicted, either on his own confession or by ver-
dict, and sentenced before the trial of the other is con-
cluded, the prisoner so sentenced is rendered competent
for or against the other. — R. v. Jackson, 6 Cox, 525 ; R.
v. Gallagher, 13 Cox, 61.
In R. v. Winsor, 10 Cox, 276, it was held that where
two persons are jointly indicted, but separately tried, one
of them may be called as a witness against the other,
although the one so called as a witness has not been tried,
nor acquitted, nor pleaded guilty to the indictment, nor
discharged on a nolle prosequi. So in R. v. Payne, 12
Cox, 121, Chief Justice Cockburn said that if prisoners
jointly indicted are tried separately, there can be no objec-
tion to calling one prisoner as witness for another. See
R. v. Jerrett, 22 U. C. Q. B. 499.
In R. v. Deeley, 11 Cox, 607, Mellor, J., allowed two
of the prisoners to be called as witnesses on behalf of the
third, though they were jointly indicted and trie 1 together.
HHH
898 PROCEDUKE ACT.
But this case is overruled, and in B. v. Payne, 12 Cox,
118, it was held, by sixteen judges, that after several pris-
oners, jointly indicted and tried, are given in charge to
the jury, one, whilst in such charge, cannot be called as a
witness for another. And in B. v. Thompson, 12 Cox,
202, upon the same principle, it was held that the wife of
a prisoner, jointly indicted and given in charge to the jury
with other prisoners, cannot be called as a witness by one
of the other prisoners whilst the husband is so in charge
with them. — See B. v. Boulton, 12 Cox, 87 ;B. v. Brad-
laugh, 15 Cox, 217.
Whenever, therefore, the crown or the defendant intend
to call as a witness one of the co-defendants they should
ask for a separate trial : if it is only after the defendants
have jointly been given in charge to the jury that the
evidence of one of the defendants is discovered to be
necessary, then, if for the crown, a nolle prosequi may be
entered, or a verdict of acquittal may be taken, in the dis-
cretion of the court, if no evidence has been given against
the party who is sought to be made a witness. Then the
discharged prisoner becomes competent to testify either
for the crown, or for his former co-defendants. — 2 Taylor,
Ev., par. 1223.— B. v. Hambly, 16 U. C. Q. B. 617.
If, on a first trial of two prisoners jointly indicted and
tried together, the jury are discharged without giving a
verdict, there is nothing to prevent the prosecution from
trying only one of the prisoners on the venire de novo, and
then, on this second trial, to call as a witness, on this issue,
the other prisoner. — B. v. Winsor, 10 Cox, 27 6. See 1
Sta7-kie, Ev., 143, and 2 Starkie, 797.
As to necessity for evidence of an accomplice to be cor-
roborated.— B. v. Andrews, 12 0. B. 184 ; following B. v.
Stubbs, 7 Cox, 48 ; Dears. 555, and B, v. Beckwith, 8 U. C.
C. P. 274.
PROCEDURE ACT. 899
Ona trial for murder the widow of the deceased was the
principal witness for the crown, and she testified that pris-
oner had told her he was planning the murder. There was
other evidence of her improper intimacy with the prisoner.
The prisoner having been convicted :
Held, that whether she was an accomplice or not the
verdict should not be disturbed. — R. v. Smith, 38 U. C. Q.
B. 218.
A. and B. were tried together on a joint indictment for
assault on a peace officer, and the wife of A. was offered as
a witness to disprove the charge against B. :
Held, that her evidence was properly rejected, but had
the husband not been on his trial she would have been a
competent witness. — The Queen v. Thompson, 2 Han.
(N. B.) 71.
216. On the summary or other trial of any person upon any
complaint, information or indictment, for common assault, or for
assault and battery, the defendant shall be a competent witness for the
prosecution or on his own behalf:
2. On any such trial the wife or husband of the defendant shall be
a competent witness on behalf of the defendant :
3- If another crime is charged, and the court having power to try
the same is of opinion, at the close of the evidence for the prosecution,
that the only case apparently made out is one of common assault, or
of assault and battery, the defendant shall be a competent witness for
the prosecution or on his own behalf, and his wife or her husband, if
the defendant is a woman, shall be a competent witness on behalf of
the defendant, in respect of the charge of common assault, or assault
and battery :
i. Except as in the next preceding sub-section mentioned, thiB
section shall not apply to any prosecution in which any other crime
than common assault, or assault and battery, is charged in the infor-
mation or indictment. — 43 V., c. 37, s. 2.
217. Nothing herein contained shall, except as provided in the
next preceding section, render any person who is charged, in any
criminal proceeding, with the commission of any indictable offence, or
any offence punishable on summary conviction, competent or compel-
900 PROCEDURE ACT.
lable to give evidence for or against himself, or shall render any
person compellable to answer any question tending to criminate him-
self; and nothing herein contained shall render any husband compe-
tent or compellable to give evidence for or against his wife, or any
wife competent or compellable to give evidence for or against her
husband in any criminal proceeding. — C. S. U. C, c. 32, s. 18. R. S,
N. S. (3rd &), c. 135, s. 44, part. 19 V. (N. B.), c. 41, s. 2, part.
16 V. {P. E. I.), c. 12, s. \3,part.
On an indictment for assault and battery occasioning
actual bodily harm, the defendant is not a competent
witness on his own behalf under sec. 216 of the Procedure
Act.— R. v. Richardson, 46 U. C. Q. B. 375. See R. v.
Border, 30 U. C. G. P. 19 , R. v. McDonald, 30 U. C.
C. P. 21, note.
The fraudulent removal of goods under 11 G-. 2, c. 19, s.
4, is a crime, and a conviction therefor was quashed with
costs ag;iinst the landlord, because the defendant had been
compelled to testify on the prosecution. — The Queen v.
Lackie, 7 0. R. 431.
By the Interpretation Act, the word " herein " in sec. 217
means " in this act." So that the last part of the section
seems rather a contradiction of parts of sec. 216.
218. The evidence of any person interested or supposed to be
ntcrested in respect of any deed, writing, instrument or other matter
given in evidence on the trial of any indictment or information against
any person for any offence punishable under the " Act respecting
Forgery" shall not be sufficient to sustain a conviction for any of the
saiii oif'ence8 unless the same is corroborated by other legal evidence
in support of such prosecution. — 32-33 V ., c. 19, s. 54, part.
See R. v. Hughes, 2 East P. G. 1002. R. v. Maguire,
Ibid. The Bank prosecutions, R. & R. 378.
There is no such enactment in England. The act 9
Geo. 4, c. 32, s. 2, was the first enactment enabling the
party whose name is forged to be a witness for the prose-
cution.
PROCEDURE ACT. 901
219. Any quaker or other person allowed by law to affirm instead
of swearing in civil cases, or who solemnly declares that the taking
of any oath is, according to his religious belief, unlawful, who is
required to give evidence in any criminal case shall, instead of taking
an oath in the usual form, be permitted to make his solemn affirma-
tion or declaration, beginning with the words following, that is to
say : "I, A. B., do solemnly, sincerely and truly declare and affirm ; "
which said affirmation or declaration shall be of the same force and
effect as if such quaker or other person as aforesaid had taken an oath
in the usual form. — 32-33 ¥., c. 29, s. 61.
This enactment corresponds with the 24-25 V., c. 66,
32-33 V., c. 63, and 33-34 V., c. 49, of the Imperial
Statutes. The declaration required may be given with the
affirmation as follows : " I, A. B., do solemnly, sincerely
and truly declare and affirm that the taking of any oath is,
according to my religious belief, unlawful, and I do also
solemnly, sincerely and truly declare and affirm." — 2
Taylor, Eu., pars. 1253 and 1254.
220. Whenever it is made to appear at the instance of the Crown c
or of the prisoner or defendant, to the satisfaction of a judge of a supe-
rior court, or a judge of a county court having criminal jurisdiction,
that any person who is dangerously ill, and who, in the opinion of
some licensed medical practitioner, is not likely to recover from such
illness, is able and willing to give material information relating to any
indictable offence, or relating to any person accused of any such offence,
such judge may, bv order under his hand, appoint a commissioner to
take in writing the statement on oath or affirmation of such person:
2. Such commissioner shall take such statement and shall subscribe
the same and add thereto the names of the persons, if any, present at the
taking thereof, and if the deposition relates to any indictable offence
for which any accused person is already committed or bailed to appear
for trial, shall transmit the same, with the said addition, to the proper
officer of the court fcjr trial at which such accused person has been so
committed or bailed ; and in every other case be shall transmit the
same to the clerk of the peace of the county, division or city in which
he has taken the same, and such clerk of the peace shall preserve the
same and file it of record, and, upon order of the court or of a judge,
transmit the same to the proper officer of the court where the same
shall be required to be used as evidence:
902 PROCEDURE ACT.
3. If afterwards, upon the trial of any offender or offence to which
the same relates, the person who made the statement is proved to be
dead, or if it is proved that there is no reasonable probability that such
person will ever be able to attend at the trial to give evidence, such
statement may, upon the production of the judge's order appointing
such commissioner, be read in evidence, either for or against the
accused, without further proof thereof, if the same purports to be
signed by the commissioner by or before whom it purports to have been
taken, and if it is proved to the satisfaction of the court that reasonable
notice of the intention to take such statement was served upon the
person (whether prosecutor or accused) against whom it is proposed,
to be read in evidence, and thatsuch person or his counsel or attorney
had, or might have had, if he had chosen to be present, full opportu-
nity of cross-examining the person who made the same. — 43 V., c. 35
ss. 1 and3,part. 30-31 V., c. 35, s. 6, Imp.
The notice required by this section is a written notice.
Whether it has been a reasonable notice, and whether the
opportunity for cross-examination was sufficient or not, are
questions for the judge at the trial. — jR. v. Shurmer, 16
Cox, 94.
221. Whenever a prisoner in actual custody is served or receives
notice of an intention to take such statement as hereinbefore mentioned,
the judge who has appointed the commissioner may, by an order in
writing, direct the gaoler having the custody of the prisoner to convey
him to the place mentioned in the said notice, for the purpose of being
present at the taking of the statement ; and such gaoler shall convey
the prisoner accordingly, and the expenses of such conveyance shall
be paid out of the funds applicable to the other expenses of the prison
from which the prisoner has been conveyed. — 43 V-, c. 35, ss. 2 and
3, part. 30-31 V., c. 35, s. 7, Imp.
222. If, upon the trial of any accused person, it is proved upon
the oath or affirmation of any credible witness, that any person whose
deposition has been taken by a justice in the preliminary or other
investigation of any charge, is dead, or is so ill as not to be able to
travel, or is absent from Canada, and if it is also proved that such
deposition was taken in the presence of the person accused, and that
he, his counsel or attorney, had a full opportunity of cross-examining
the witness, then if the deposition purports to be signed by the justice
by or before whom the same purports to have been taken, it shall be
PROCEDURE ACT. 903
read as evidence in the prosecution, without further proof thereof
unless it is proved that such deposition was not in fact signed by the
justice purporting to have'signed the same. — 32-33 V., c- 30, s. SO, part
11-12 F., c. 42, s. 17, Imp.
Doubts have arisen in England whether, under this last
cited clause of the Imperial act, the prosecution must have
been identically for the same offence as charged against the
prisoner, by the depositions against him as taken by the
magistrate, and it has even been held that a deposition
taken on a charge of assault could not afterwards be received
on an indictment for wounding. — R. v. Ledbetter, 3 C.X*
K. 108. Though in the subsequent case of R- v. Beeston,
Dears. 405, it was held by the court of criminal appeal
that a deposition taken on a charge, either of assault and
robbery, of doing grievous bodily harm, or of feloniously
wounding with intent to do grievous bodily harm, can,
after the death of the witness, be read upon a trial for mur-
der or manslaughter, where the two charges relate to the
same transaction, yet it seems by the report of the case
that if the charges on the two occasions had been substan-
tially different, the deposition would not have been admis-
sible : see R. v. Lee, 4 F. & F. 63; R. v. Radbou,
Leach, 457 ; R. v. Smith, R. & R. 339 ; R. v. Dilmore, 6
Cox, 52. But now, in Canada, by sec. 224 of the Procedure
Act, all doubts on the question are removed, and a deposi-
tion taken on " any " charge against a person may be read
as evidence in the prosecution of such person for "any
other o fence whatsoever," when the deposition is otherwise
admissible.
Prisoner's deposition. — The depositions on oath of a
witness legally taken are admissible evidence against him,
if he is subsequently tried on a criminal charge. The only
exception is in the case of answers to questions, which he
904 PROCEDURE ACT.
objected to, when his evidence was taken as tending to
criminate him, but which he has been improperly compelled
to answer.— R. v. Coote, L. R. 4 P. C. 599 ; 12 Cox, 557 ;
R. v. Garbett, 1 Den. 236. Where a witness claims pro-
tection on the ground that an answer may criminate him,
and lie is compelled to answer, the answer is inadmissible
whether he claim the protection in the first instance or -after
having given some answers tending to criminate himself. —
R. v. Garbett, ubi supra. But it seems that the part of
the deposition given before such witness has so claimed the
protection of the court is admissible. — R. v. Coote, ubi
supra. And the witness need not have been cautioned or
put upon his guard as to the tendency of the question, in
order to render his answer admissible. Sees. 70 and 71 of
the Procedure Act, are applicable to accused persons only
and not to witnesses ; and sec. 72 of the same Act enacts
specially that "nothing herein contained shall prevent any
prosecutor from giving in evidence any admission or con-
fession, or other statement made at any time by the person
accused or charged, which by law would be admissible as
evidence against him." See 3 Russ. 418, and R. v. Coote,
ubi supra.
Also, R. v. Wellincjs, 14 Cox, 105, and jR. v. Beriau,
Ramsay's App. Cases, 185.
The fact alone of the witness residing abroad at the time
of the trial is not sufficient to admit his deposition. — R. v.
Austin, Dears. 612.
On a trial for murder, the examination of the deceased
cannot be put in evidence, if the prisoner had not the
opportunity to cross-examine him, he having knowledge
that it wa3 his interest to do so. — R. v. Milloy, 6 L. A7". 95.
Depositions not taken in presence of the accused cannot
be submitted to the grand jury under sec. 222, Procedure
Act,— R. v. Carbray, 13 Q. L. R. 100.
PROCEDURE ACT. 905
The deposition, regularly taken by the committing magis-
trate, of a witness, was allowed to be read at the trial, for
the reason that a medical man proved that the witness was
old, and that he thought, under her state of nervousness,
that she would faint at the idea of coming into court,
though he was of opinion that she could go to London to
see a doctor without difficulty or danger. Held, that her
deposition ought not to have been received. — R. v. Farrell,
12 Cox, 605; R. v. Thompson, 13 Cox, 181.
The deposition of a witness who has travelled to the
assize town, but is too ill to attend court, may be read
before the grand jury. — R. v. Wilson, 12 Cox, 622; R. v.
Gerrans, 13 Cox, 158 ; R. v. Goodfellow, 14 Cox, 326.
Depositions taken abroad under the Merchant Shipping
Act may be received in evidence, if the witness cannot be
had.— R. v. Stewart, 13 Cox, 296.
Too much importance ought not to be attached to the
variations between what a witness' says at the trial and
what his deposition before the magistrate makes him say, if
there is a substantial concordance between both. — R. v.
Wainwright, 13 Cox, 171.
On a charge of murder, to prove malice or motive against
the prisoner, the deposition of the deceased against him,
taken before the magistrates on another charge, was held
admissible. — R. v. Buckley, 13 Cox, 293 ; R.v. Williams,
12 Cox, 101.
Upon a prosecution for uttering forged notes, the deposi-
tion of one S., taken before the Police Magistrate on the
preliminary investigation, was read upon the following
proof that S. was absent from Canada. E. swore that S. had,
a few months before, left his (R.'s) house where she (S.)
had, for a time, lodged; that she had since twice heard
from her in the U. S. but not for six months. The chief
906 PKOCEDURE ACT.
constable of Hamilton, where the prisoner was tried,
proved ineffectual attempts to find S., by means of personal
inquiries in some places, and correspondence with the
police of other cities. S. had for some time lived with the
prisoner as his wife :
Held, upon a case reserved, Cameron, J., dis., that the
admissibility of the deposition was in the discretion of the
judge at the trial, and that it could not be said that he had
wrongfully admitted it. — The Queen v. Nelson, 1 0. R. 500.
223. The statement made by the accused person before the justice
may, if necessary, upon the trial of such person, be given in evidence
against him without further proof thereof, unless it is proved that
the justice purporting to have signed the same did not in fact sign the
same.— 32-33 V.,c. 30, s. 34. 11-12 V., c 42, s. 18, Imp.
See The Queen v. Soucie, under sec. 4 of c. 168, p.
565, ante. i his section must be read in connection with
sees. 70 and 71 of the Procedure Act, p. 688, ante.
224. Depositions taken in the preliminary or other investigation
of any charge against any person may be read as evidence in the
prosecution of such person for any other offence whatsoever, upon the
like proof and in the same manner, in all respects, as they may,
according to law, be read in the prosecution of the offence with which
such person was charged when such depositions were taken. — 32-33
V., c. 29, s. 58.
The deposition on oath of a witness is evidence against
him on his trial if he is subsequently charged with a
crime.— R. v. Goote, 12 Cox, 557 ; L. R. 4 P. C. 599. See
R. v. Buckley, ante, under sec. 222, and remarks under
that section.
225. A certificate, containing the substance and effect only, omit
ting the formal part, of the indictment and trial for any felony or mis-
demeanor, purporting to be signed by the clerk of the court or other
officer having the custody of the records of the court whereat the
indictment was tried, or among which such indictment h as been filed,
or by the deputy of such clerk or other officer, shall, upon the trial of
PROCEDURE ACT. ' 907
an indictment for perjury or subornation of perjury, be sufficient evi-
dence of the trial of such indictment for felony or misdemeanor,
without proof of the signature or official character of the person
appearing to have signed the same. — 32-33 V., c. 23, s. 11. 14-15 V., c>
100, s. 22, Imp.
It is to be observed that this section is merely remedial,
and will not prevent a regular record from being still admis-
sible in evidence, and care must be taken to have such
record drawn up in any case where the particular aver-
ments in the former indictment may be essential. — Lord
Campbell' 8 Acts, by Greaves, 27.
Before the same court, though not during the same term,
the production by the officer of the court of the indictment
with the entries thereon and the docket entries is sufficient.
— jR. v. Newman, 2 Den. 390. But the record or a certifi-
cate under the above section are necessary when before
another court. — B. v. Coles, 16 Cox, 165.
226. Whenever, upon the trial of any offence, it is necessary to
prove carnal knowledge, it shall not be necessary to prove the actual
emission of seed in order to constitute a carnal knowledge, but the
carnal knowledge shall be deemed complete on proof of any degree of
penetration only.— 32-33 V., c 20, s- G5.
See sec. 37 of c. 162, p. 197, ante.
227. The trial of any woman charged with the murder of any
issue of her body, male or female, which, being born alive, would, by
law, be bastard, shall proceed and be governed by such and like rules
of evidence and presumption as are by law used and allowed to take
place in respect to other trials for murder. — 32-33 F., c. 20, s. 62.
This section repeals 21 Jac. 1, c. 27, repealed in Eng-
land by 43 Geo. 3, c. 58. By the repealed act, if the
mother of an illegitimate child endeavored privately to
conceal his birth and death, she was presumed to have
murdered it, unless she could prove that the child was born
dead. Taylor, on Evidence, J\rote 7, p. 128, justly says
that this rule was barbarous and unreasonable.
908 PROCEDUKE ACT.
228. In any prosecution, proceeding or trial for any offence under
the eighty-seventh section of " The Larceny Act" a timber mark,
duly registered under the provisions of the " Act respecting the Mark-
ing of Timber " on any timber, mast, spar, saw-log, or other descrip-
tion of lumber, shall he prima facie evidence that the same is the pro-
perty of the registered owner of such timber mark ; and possession by
any offender, or by others in his employ, or on his behalf, of any such
timber, mast, spar, saw-log or other description of lumber so marked,
ehall, in all cases, throw upon the person charged with any such
offence the burden of proving that sucli timber, mast, spar, sawdog or
other description of lumber, came lawfully into his possession, or the
possession of such others in his employ or on his behalf as aforesaid. —
38 F., c 40, s. I, part.
See sec. 87 of The Larceny Act, p. 457, ante.
The act respecting the marking of timber is c. 64 of
b. s. a
229. When, upon the trial of any person, it becomes necessary to
prove that any coin produced in evidence against such person is false
or counterfeit, it shall not be necessary to prove the same to be false
and counterfeit by the evidence of any moneyer or other officer of
Her Majesty's mint, or other person employed in producing the lawful
coin in Her Majesty's dominions or elsewhere, whether the coin coun-
terfeited is current coin, or the coin of any foreign prince, state or
country, not current in Canada, but it shall be sufficient to prove the
same to be false or counterfeit by the evidence of any other credible
witness.— 32-33 V., c. 18, s. 30. 24-25 V., c. 99, s. 29, Imp.
The usual practice is to call as a witness a silversmith
of the town where the trial takes place, who examines the
coin in court, in the presence of the jury. ->— Davis's Cr. L.
235.
230. A certificate, containing the substance and effect only, omit-
ting the formal part, of any previous indictment and conviction for
any felony or misdemeanor, or a copy of any summary conviction,
purporting to be signed by the clerk of the court or other officer hav-
ing the custody of the records of the court before which the offender
was first convicted, or to which such summary conviction was re-
turned, or by the deputy of such clerk or officer, shall, upon proof of
the identity of the person of the offender, be sufficient evidence of such
PROCEDURE ACT. 909
conviction, without proof of the signature or official character of the
person appearing to have signed the same. — 32-33 V., c. 29, s. 26,
part.
See sees. 139 and 207, ante, of which, in the correspond-
ing English sections, this section 230 forms part.
The Act 3-4-35 V., c. 112, s. 18, Imp., also contains an
enactment as to proof of a previous conviction.
231. A witness may be questioned as to whether he has been con-
victed of any felony or misdemeanor, and upon being so questioned,
if he either denies the fact or refuses to answer, the opposite party
may prove such conviction ; and a certificate, as provided in the next
preceding section, shall, upon proof of the identity of the witness, as
such convict, be sufficient evidence of his conviction, without proof
of the signature or the official character of the person appearing to
have signed the certificate. — 32-33 V., c. 29, s. 65.
This enactment is taken from the 28 V., c. 18, s. 6}
of the Imperial statutes, An Act for amending the law
ofepidenee a/nd practice on Us.
Questions tending to expose the witness to criminal accu-
sation, punishment or penalty need not be answered ; no
one can be forced to criminate himself. But this privilege
can be invoked only by the witness himself. Nor is the
judge bound to warn the witness of his right, though he
may deem it proper to do so. — 2 Taylor, Ev., far. 1319 ;
R. v. Coote, L. R. 4 P. C. 599 ; 12 Cox, 557. Whether
the answer may tend to criminate the witness, or expose
him to a penalty or forfeiture, is a point which the court
will determine, under all the circumstances of the case, as
soon as the protection is claimed, but without requiring
the witness fully to explain how the effect would be pro-
duced; for, if this were necessary, the protection which the
rule is designed to afford to the witness would at once be
annihilated.
It is now decided, contrary to an opinion formerly
910 PEOCEDUEE ACT.
entertained by several of the judges, that the mere
declaration of a witness on oath, that he believes that the
answer will tend to criminate him, will not suffice to
protect him from answering, when the other circumstances
of the case are such as to induce the judge to believe that
the answer would not really have that tendency. In all
cases of this kind the court must see from the surrounding
circumstances, and the nature of the evidence which the
witness is called to give, that reasonable ground exists for
apprehending danger to the witness from his being com-
pelled to answer. When, however, the fact of such
danger is once made to appear, considerable latitude
should be allowed to the witness in judging for himself of
the effect of a particular question ; for it is obvious that a
question, though at first sight apparently innocent, may
by affording a link in a chain of evidence, become the
means of bringing home an offence to the party answering.
On the whole, as Lord Hardwicke once observed, " these
objections to answering should be held to very strict rules,"
and, in some way or other, the court should have the
sanction of an oath for the facts on which the objection is
founded. — 2 Taylor, Ev., par. 1311.
If the prosecution to which the witness might be
exposed, or his liability to a penalty or forfeiture, is barred
by lapse of time, the privilege has ceased and the witness
must answer. — 2 Taylor, Ev., par. 1312.
Whether a witness is bound to answer any question
the direct and immediate effect of answering which might
be to degrade his character, seems doubtful, although
where the transaction as to which the witness is interro-
gated forms any material part of the issue, he will be
obliged to answer, however strongly his evidence may
reflect on his character.
PROCEDURE ACT. 911
"Where, however, the question is not directly material
to the issue, but is only put for the purpose of testing the
character and consequent credit of the witness, there is
much more room for doubt. Several of the older dicta
and authorities tend to show that in such case the witness
is not bound to answer ; but the privilege, if it still exists,
is certainly much discountenanced in the practice of mod-
ern times. Even Lord Ellenborough, who is reported to
have held on one occasion that a witness was not bound
to state whether he had not been sentenced to imprisonment
in a house of correction, and on another, that the question
could not so much as be put to him, seems in a later case
to have disregarded the rules thus enunciated by himself ;
for, on a witness declining to say whether or not he had
been confined for theft in gaol, his Lordship harshly
observed : " If you do not answer the question, I will send
you there."
No doubt cases may arise where the judge, in the
exercise of his discretion, would very properly interpose to
protect the witness from unnecessary and unbecoming
annoyance. For instance, all inquiries into discreditable
transactions of a remote date might, in general, be rightly
suppressed ; for the interests of justice can seldom require
that the errors of a man's life, long since repented of, and
forgiven by the community, should be recalled to remem-
brance at the pleasure of any future litigant. So questions
respecting alleged improprieties of conduct, which furnish
no real ground for assuming that a witness who could be
guilty of them would not be a man of veracity, might very
fairly be checked. But the rule of protection should not
be further extended ; for if the inquiry relates to transac-
tions comparatively recent, bearing directly upon the moral
principles of the witness, and his present character for
912 PKOCEDUKE ACT.
veracity, it is not easy to perceive why he should be pri-
vileged from answering, notwithstanding the answer may
disgrace him. It has, indeed, been termed a harsh alterna-
tive to compel a witness either to commit perjury or to
destroy his own reputation; but, on the other hand, it is
obviously most important that the jury should have the
means of ascertaining the character of the witness, and of
thus forming something like a correct estimate of the value
of his evidence. Moreover, it seems absurd to place the
mere feelings of a profligate witness in competition with
the substantial interests of the parties in the cause. — 2
Taylor, Ev., pars. 1313, 1314, 1315; 3 Buss. 543, 547.
By the words " or refuses to answer " in the said section
(and these words are also in the Imperial statute), it
would, at first sight, seem that the witness questioned as to
a previous conviction is not bound to answer; but it
is obvious that this is not so ; and the above quotation
from Taylor goes to show clearly that the question, if
insisted upon by the court, must be answered. Indeed, in
a great many cases, the party putting the question could
not be expected to be ready, on the spot, to prove the
conviction of the witness, otherwise than by himself.
232. It shall not be necessary to prove by the attesting witness
any instrument to the validity of which attestation is not requisite ; and
such instrument may be proved by admission or otherwise, as if there
had been no attesting witness thereto. — 32-33 V., c. 29, s. 66.
This is, verbatim, sec. 7 of 28 V., c. 18, of the Imperial
statutes. Formerly the rule was that if an instrument,
on being produced, appeared to be signed by subscribing
witnesses, one of them, at least, should be called to prove
its execution. The above clause abrogates this rule. It
applies only to instruments to the validity of which
attestation is not requisite. In 2 Taylor, Ev., pars.
PROCEDURE ACT. 913
1637, et seq., will be found a list of the principal documents
requiring attestation in England.
233. Comparison of a disputed writing with any writing proved
to the satisfaction of the court to be genuine, shall be permitted to be
made by witnesses ; and such writings and the evidence of witnesses
respecting the same may be submitted to the court and jury, as evi-
dence of the genuineness or otherwise of the writing in dispute. — 32-
33 V., c. 29, s. 67.
As the preceding clauses, this enactment is taken
from the 28 V., c. 18 of the Imperial statutes, and is ver-
batim section 8 thereof. Before this enactment, it was an
established rule that, in a criminal case, handwriting could
not be proved by comparing a paper with any other papers
acknowledged to be genuine: 3 Russ., 361; neither the
witness nor the jury were allowed to compare two writings
with each other, in order to ascertain whether both were
written by the same person. — 2 Taylor. Ev., par. 1667.
23-1. A party producing a witness shall not be allowed to impeach
his credit by general evidence of bad character ; but if the wit::
the opinion of the court, proves adverse, such party may contradict
him by other evidence, or, by leave of the court, may prove that the
witness made at other times a statement inconsistent with his present
testimony; but before such last mentioned proof can be given, the
circumstances of the supposed statement, sufficient to designate the
particular occasion, shall be mentioned to the witness, aii'l he shall be
asked whether or not he did make such statement. — 32-33 V., c 29,
s. 68.
This is sec. 3 of the 28-29 V., c. 18, of the Imperial
Statutes, an Act for amending the law of evidence and
practice on criminal trials.
In the Province of Quebec a similar enactment is con-
tained in article 269 of the Code of Civil Procedure.
The word adverse in the above clause does not mean
merely unfavorable, but hostile ; 2 Taylor, Ev., par,
1282. However, in Dear v. Knight, 1 F. & F. 433, Erie,
in
914 PROCEDUKE ACT.
J., appears to have regarded a witness as " adverse," sim-
ply because he made a statement contrary to what he was
called to prove.
The first part of the clause seems to have always been
the law. It was decided in Ewer v. Ambrose, 3 B. & G.
746, that if a witness called to prove a fact prove the con-
trary, his credit could not be impeached by general evid-
ence, but, in R. v. Ball, 8 C. & P. 745, that the party is at
liberty to make out his case by other and contradictory
evidence. The portion of the clause allowing a party to
prove that his witness made at any time a different account
of the same transaction seems to be new law, by the said
case of R. v. Ball, ubi supra. See R. v. Little, 15 Cox,
319.
235. Upon any trial, a witness may be cross-examined as to pre-
vious statements made by him in writing, or reduced to writing, rela-
tive to the subject matter of the case, without such writing being
shown to him ; but if it is intended to contradict the witness by the
writing, his attention must, before such contradictory proof can be
given, be called to those parts of the writing which are to be used for
the purpose of so contradicting him ; and the judge at any time dur-
ing the trial may require the production of the writing for his inspec-
tion, and he may thereupon make such use of it for the purposes of
the trial as he thinks fit : Provided, that a deposition of the witness,
purporting to have been taken before a justice on the investigation of
the charge, and to be signed by the witness and the justice, returned
to and produced from the custody of the proper officer, shall be pre-
sumed prima facie to have been signed by the witness. — 32-33 F., c#
29, s. 64, 40 V., c. 26, s. 5.
The words " upon any trial " mean " upon any trial
in any criminal case." This enactment is sec. 5 of 28
V., c. 18, of the Imperial statutes, an Act for amending
the law of evidence and practice on criminal trials : upon
which see 2 Taylor, Ev., pars. 1301, 1302, 1303 ; 3 Russ.
550. The general rule was that, when a contradictory
statement alleged to have been made by the witness was
PROCEDURE ACT. 915
contained in a letter or other writing, the cross-examining
party should produce the document as his evidence, and
have it read, in order to base any questions to the witness
upon it. The above clause abrogates this rule, under which
was excluded one of the best tests by which the memory
and integrity of a witness can be tried, 2 Taylor, Ev., par.
1301. Before the abrogation of the rule, the witness could
not be asked whether he did or did not state a particular
fact before the magistrate, without first allowing him to
read, or have read to him, his deposition. — H. v. Edwards,
8 C. & P. 26. And it was irregular to question a witness
as to the contents of a former declaration, affidavit, letter
or any writing made or written by him, or taken in writing
as his declaration or deposition, without first having the said
writing read.— The Queen's case, 2 Brad. & B. 288. The
prosecution cannot use or refer to the depositions without
putting them in. — R. v. Mailer, 10 Cox, -43.
But if the former declarations of the witness were not
in writing, but merely by parol, he may be cross-examined
on the subject of it, and if he deny it, another witness may
be called to prove it, if it be a matter relevant to the issue ;
if not relevant to the issue, the witness's answer is conclu-
sive.— 2 Taylor Ec, par. 1295.
236. If a witness, upon cross-examination ad to a former state- b
nieut made by him, relative to the subject matter of the ca.-e, and
inconsistent with his present testimony, does not distinctly admit that
he did make such statement, proof may be given that he did in tact
muke it ; but before such proof can be given, the circumstances of
the supposed statement, sufficient to designate the particular occasion
shall be mentioned to the witness, and he shall be asked whether or
not he did make such statement. — 32-33 V-, c 29, «. 69.
This enactment is taken from s. 4 of the 28 V., c.
18 of the Imperial statutes.
Formerly there was some difference of opinion as to
whether in such a case, proof might be given that the
916 PROCEDURE ACT.
witness had made the statement denied by him. It must
be observed that the clause applies only to a statement
relative to the subject matter of the case. If it is not
relative to the subject matter of the case, the answer given
by the witness must be taken as conclusive. It seems
that questions respecting the motives, interest or conduct
of the witness, as connected with the cause or with either
of the parties, are relevant quoad this enactment, though
Coleridge, J., in M. v. Lee, 2 Leivin, 154, held that if a
witness denies that he has tampered . with the other
witnesses, evidence to contradict him cannot be received.
This case was before the statute, and does not specially
apply to a former statement made by a witness. As
to the last part of the clause, it is based on a principle
always received under the rules of evidence. It was held
in The Queen1 's case, 2 Brod. & B. 311, that where a wit-
ness for a prosecution has been examined in chief, the
defendant cannot afterwards give evidence of any declara-
tion by such witness, or of acts done by him, to procure
persons corruptly to give evidence in support of the prose-
cution, unless he has previously cross-examined such
witness as to such declarations or acts.
VARIANCES — RECORDS.
237. Whenever, in the indictment whereon a trial is pending
before any court of criminal jurisdiction in Canada, any variance
appears between any matter in writing or in print produced in evidence,
and the recital or setting forth thereof, such court may cause the
indictment to be forthwith amended in such particular or particulars, by
some officer of the court, and after such amendment the trial shall
proceed in the same manner in all respects, both with regard to the
liability of witnesses to be indicted for perjury, and otherwise, as if no
s ich variance had appeared. — 32-33 V., c. 29, s- 70.
This enactment is taken from the 11-12 V., c. 4G, s.
4 of the Imperial statutes.
PROCEDUKE ACT. 917
At common law, any variance between an instrument
as alleged in the indictment and the instrument itself as
produced in evidence was fatal. — E. v. Powell, 2 East, P.
C. 976 ; see post, remarks under the next section.
In a case of libel, there was no allegation in the indict-
ment, that the article complained of had been circulated in
the district of Montreal, where the offence was laid : Helch
that an amendment to cure that defect could not be
allowed — R. v. Hickson, 3 L. N. 139.
238. Whenever, on the trial of an indictment for any felony or
misdemeanor, any variance appears between the statement in such
indictment and the evidence offered in proof thereof, in names, dates,
places or other matters or circumstances therein mentioned, not mate-
rial to the merits of the case, and by the mis-statement whereof the
person on trial cannot be prejudiced in his defence on such merits, the
court before which the trial is pending may order such indictment to
be amended according to the proof, by some officer of the court or
other person — both in that part of the indictment where the variance
occurs, and in every other part of the indictment which it may become
necessary to amend on such terms as to postponing the trial to be had
before the same or another jury as such court thinks reasonable ; and
if the trial is postponed the court may respite the recognizances of the
prosecutor and witnesses, and of the defendant and his sun
any, in which case they shall respectively be bound to attend ;.t the
r time and ph.ce to which the trial is postponed, without entering into
new recognizances, and as it such time and place had been mentioned
in the recognizances respited, as those at which they were respectively
bound to appear. — 32-33 V., c. 29, s- 71.
239. After any such amendment the trial shall proceed, whenever
the same is proceeded with, in the same manner and with the same
consequences, both with respect to the liability of witnesses to be
indicted for perjury and in all other respects, as if no such variance
had occurred— 32-33 V., c 29, s. 72.
240. In such case the order for the amendment shall be indorsed
on the record ; and all other rolls and proceeding? connected there-
with shall be amended accordingly by the proper officer and filed with
the indictment, among the proper records of the court. — 32-33 V., c.
29, s. 73.
918 PEOCEDUEE ACT.
241. When any such trial is had before a second jury, the Crown
and the defendant respectively shall be entitled to the same challenges
as they were entitled to with respect to the first jury. — 32-33 V., c. 29,
s. 74.
242. Every verdict and judgment given after the making of any
such amendment shall be of the same force and effect in all respects
as if the indictment had originally been in the same form in which it
is after such amendment has been made. — 32-33 V., c. 29, s. 75.
243. If it becomes necessary to draw up a formal record in any
case in which an amendment has been made as aforesaid, such
record shall be drawn up in the form in which the indictment remained
after the amendment was made, without taking any notice of the fact
of such amendment having been made. — 32-33 V., c. 29, s. 76.
These clauses are taken from the 14-15 V., c. 100, of the
Imperial statutes (Lord Campbell's act), in relation to
which Greaves remarks : —
" This is one of the most important sections in the act,
and, if the power given by it be properly exercised, will
tend very materially to the better administration of crim-
inal justice. Formerly, if any variance occurred between
any allegation in an indictment, and the evidence adduced
in support of it, the prisoner was entitled to be acquitted.
This led to much inconvenience. It caused the multipli-
cation of counts, varying the statement in as many ways as
it was possible to conceive the evidence could support, and
thereby greatly increased the expense of the prosecution. It
sometimes led to the entire escape of heinous offenders, for it
happened in some cases that the grand jury were discharged
before the acquittal took place ; and though such acquittal
in many cases would not have operated as a bar to another
indictment, yet the prosecutor chose rather to submit to
the first defeat, than to prefer another indictment at a
subsequent assizes ; and even in some cases an acquittal
took place under such circumstances that the prisoner was
enabled successfully to plead it in bar to another indict-
PROCEDURE ACT. 919
ment. Thus in Sheen's case, 2 C. & P. 634, where the
prisoner had been indicted for the murder of Charles
William Beadle, and acquitted on the ground that the
name of the deceased could not be proved, to a subsequent
indictment, which charged him with the murder of Charles
William, he pleaded the former acquittal, and that the
deceased was as well known by the name mentioned in
the one indictment as by the name mentioned in the other,
and so the jury found. This case clearly shows that the
preferriug a new bill was not in all cases sufficient to
prevent a failure of justice in consequence of a variance ;
and many like cases have occurred.
" The provisions as to the amendment of variances in
criminal cases have been gradually extended. The first
statute, which introduced the power of amendment, was
the 9 Geo. IV., c. 15, which empowered any judge at nisi
pri"$, or any court of oyer and terminer and general gaol,
delivery to amend any variance, in cases of misdemeanor,
between any matter in writing or inpvint, and the recital
thereof on the record. After this statute had been in opera-
tion for the full period of twenty years, and no injurious
consequences had been found to arise from it, the 11-12
V., c. 46, s. 4, empowered any court of oyer and terminer
and general gaol delivery to amend any variance, in any
offence whatever, bet a-een any matter in writing or in
■print, and the recital thereof on the record. And the
provisions of this act were extended to the sessions, as
far as they are applicable to offences within their juris-
diction, by the 12-13 V., c. 45, s. 10.
" As these enactments only applied to variances between
matters in writing and the record, a very numerous class
of variances was left unprovided for, and the first clause in
this act was intended to apply to all such variances. As
920 PROCEDURE ACT.
this section originally stood, immediately after the words
' persons whatsoever therein named or described/ followed
the general words ' or any variance between such state-
ment and the evidence offered in proof in any other matter
or thing whatsoever.' These words were objected to as
being too general, and struck out on that ground in the
House of Lords. The words ' or in the name or description
of any matter or thing therein named or described ' were
then inserted in the Lords. A doubt subsequently arose
whether, in case any property were described as belonging to
certain persons, and it turned out to belong to more or less
in number than the persons named, an amendment could be
made as the clause then stood ; in other words, whether
the clause warranted an amendment in the number of
owners of property ; and to avoid this difficulty, the words
' or in the ownership of any property therein named or
described ' were inserted. The striking out of the general
words is much to be regretted, as cases precisely within
the same mischief as those provided for will very probably
occur.
"As the clause now stands, it is limited to the par-
ticular variances therein enumerated, and, not only so, but
it is so cautiously framed, that whilst on the one hand it is
so worded as to prevent the escape of offenders by reason
of variances not material to the merits of the case, so on the
other it does not permit any amendment to be made
whereby the defendant may be prejudiced in his defence
upon such merits. In every case, therefore, where a
variance occurs, the court will have to consider the follow-
ing questions : 1st, whether the variance be in one of the
matters specified in the .section ; 2ndly, whether it be ' not
material to the merits of the case ; ' and lastly, if it appear
not material to the merits of the case, whether the defendant
PROCEDURE ACT. 921
may be prejudiced by the amendment ' in his defence on
such merits.'
" The terms ' merits of the case,' as applied to all
ordinary criminal cases, obviously mean the substantial
truth and justice of the case with reference to the guilt or
innocence of the prisoner. When we say that a prisoner
has been acquitted upon the merits, we mean that the jury
have heard and considered all the evidence with reference
to the question of the guilt or innocence of the prisoner of
the crime charged, and have acquitted him on the ground
that the charge was not proved. It would be a perversion
of language to apply such an expression to a case where
the prisoner was acquitted on the ground of a trifling
variance or a technical quibble.
" It may be well to observe that a matter may well
constitute some part of the merits of a case, and yet a
variance as to the name or description of such matter may
not be material to the merits of the case. Thus, upon the
trial of an indictment for stealing an animal, the proof of
the animal stolen constitutes a part of the merits of the
case, and yet the description of it, as a ewe instead of a
lamb, may not be in the least degree material to the
merits of the case as above explained.
" It is to be carefully noticed, also, that an amendment
is only prohibited where the defendant may be prejudiced
in his defence upon the merits, not in his defence simply-
Indeed, wherever any variance occurs which makes an
amendment necessary, it may be truly said that the
defendant may be prejudiced in his defence by making it,
for if the amendment be not made the defendant would be
entitled to be acquitted. The prejudice, therefore, to the
defendant, which is to prevent an amendment, is properly
confined to a prejudice in his defence upon the mt r Its,
922 PROCEDURE ACT.
which plainly means a substantial, and not a formal or
technical defence to the charge made against him.
" The clause applies in terms to six classes :
M I. The name of any county, riding, division, city,
borough, town corporate, parish, township, or place, men-
tioned or described in the indictment.
" II. The name or description of any person or persons,
or body politic or corporate, stated to be the owner or
owners of any property which forms the subject of any
offence charged in the indictment.
" III. The name or description of any person or persons,
body politic or corporate, alleged to be injured or damaged,
or intended to be injured or damaged, by the commission of
the offence charged in the indictment.
" IV. The christian name or surname, or both christian
name and surname, or other description of any person or
persons named or described in the indictment."
" V. The name or description of any matter or thing
whatsoever, named or described in the indictment."
(By the interpretation clause of the Procedure Act, the
term ' indictment ' includes inquisition, information, pre-
sentment, plea, replication, and other pleading, as well as
a nisi prius record, consequently the power of amendment
extends to all.)
" With regard to the cases in which an amendment
ought to be made or refused, as the questions whether the
variance be material to the merits of the case, and whether
the defendant may be prejudiced in his defence on the
merits by making an amendment, are questions which must
necessarily depend on the particular charge and particular
circumstances of each case, it is impossible to lay down
any general rule by which the court may be guided in all
PROCEDURE ACT. 923
cases ; indeed it is very possible that the very same iden-
tical variance, which ought unquestionably to be amended
in one case, ought just as clearly not to be amended in
another, as it may so happen that the amendment in the
one case could not possibly prejudice the prisoner in his
defence on the merits, but in the other might materially
prejudice the prisoner in such defence.
" Cases may easily be put where no doubt can exist that
the variance is not material to the merits, and that the
defendant cannot be prejudiced by an amendment in his
defence on the merits. For instance, a man steals a
sheep in the night out of a field, being ignorant at the
time of the name of the owuer of the sheep ; in such a
case it is very difficult to conceive that the name of the
owner can be material to the merits, or that the defen-
dant can be prejudiced in his defence by the name of the
owner being amended according to the proof. So also if a
man were to shoot into a crowd and wound or kill an indi-
vidual, the name of such individual could hardly by pos-
sibility be material. In each case, however, the court
must form its own judgment upon a consideration of the
whole facts of the case, and the manner in which the
variance is brought under its notice ; and it may not un-
frequently be material to see whether any suoh question
has been raised before the committing magistrate ; for if the
case has proceeded before the sitting magistrate without
any such question being raised, that may afford some
ground at least for concluding that the defendant did not
consider the point material to his defence, and that it is
not entitled to be so considered upon the trial.
" Before determining upon making an amendment, the
court should receive all the evidence applicable to the
particular point, otherwise it might happen that that which
924 PROCEDURE ACT.
appeared to be a variance upon the evidence at one stage
of the trial, might afterwards be shewn to be no variance
by the evidence at a later period of the trial; and if the
court were to amend on the evidence at the earlier period,
it would be obliged to direct an acquittal upon the evidence
at the subsequent period, for the clause gives no power to
amend the same identical particular more than once.
" Again, in order to ascertain whether the prisoner may
be prejudiced in his defence by the amendment, the court
ought to look, not only to the facts in evidence on the
part of the prosecution at the time when the amendment
is applied for, but also to the defence already set up, or
intended to be set up ; for which purpose it may, perhaps,
in some cases be necessary to examine a witness or two on
behalf of the defendant. It must be remembered that the
question is one eutirely for the court, and that the court
must decide it itself; and, generally speaking, where this
is the case, the court will not determine the question
before it on the evidence on one side, but will permit the
other side immediately to introduce any evidence that may
bear upon the question, so that the whole facts relating
to the particular question may be before the court at once.
" Thus — to mention an analogous case — where the
plaintiff proposed to put in evidence an account signed by
the defendant, and the defendant proposed to exclude the
account, on the ground that it had been delivered to the
plaintiff, an attorney, in his character of attorney for the
defendant, Erie, J., held that the defendant was entitled
immediately to put in a letter, and call a witness to prove
that the account was so delivered, though the plaintiffs
case was not closed. — Cleave v. Jones, Hereford Summer
Assizes, 1851. It must be noticed, also, that the power
to amend clearly does not extend to altering the charge in
PROCEDURE ACT. 925
the indictment from one offence to another offence. For
instance, an indictment for ' forging ' could not be altered
into an indictment for ' uttering, ' nor an indictment for
1 stealing ' into an indictment for ' obtaining by false pre-
tences.'
"Equally clear is it that the amendment ought not to be
made so as to apply to a different transaction. Every
offence, however simple it may be, consists of a number of
particulars ; it must have time, and place, and its compo-
nent parts, all of which together constitute one individual
transaction. Now the real meaning of the clause is that,
provided you keep to the same identical transaction, you
may amend any such error as is mentioned in the clause as
to one or more of the particulars included in such trans-
action. For instance, a burglary is charged in the house
of James Jones, in the parish of Winkill, and stealing the
goods of John Jeffs. The evidence shows that a burglary
was committed in every respect as alleged, except that the
goods were the property of James Jeffs. There an amend-
ment would clearly be right. But suppose, instead of such
a case, it was proposed to prove a burglary at another time,
at another place in another man's house, and the stealing
of other goods ; this clearly would not be a case for amend-
ment. The proper mode to consider the question is this :
the grand jury have had evidence of one transaction, upon
which they found the bill ; the case before the petty jury
ought to be confined to the same transaction, but if it is,
it may turn out that, either through insufficient investi-
gation or otherwise, the grand jury have been in error as
to some particular or other, and upon the trial the error is
discovered. Now this is just the case to which the clause
applies. A civil case may afford an apt illustration.
The plaintiffs declared on a promissory note for £250, made
926 PROCEDURE ACT.
by the defendant, dated the 9th of November, 1838, pay-
able to the plaintiffs, or their order, on demand ; the
defendant pleaded that he did not make the note ; the
plaintiffs proved on the trial a joint and several promissory
note for £250, made by the defendant and his wife, dated
the 6th of November, payable twelve months after date,
with interest. There was no proof of the existence of any
other note. Although it was objected that there was a mate-
rial variance in the substantial parts of the note, the date, the
parties, and the period of its duration, it was held that the
declaration was properly amended, so as to make it cor-
respond with the note produced; for it was a mere mis-
description, and it was just the case in which the Legisla-
ture intended that the discretionary power of amendment
should be exercised. — Beckett v. Button, 7 M. & W. 157.
The amendment was made under the 3 & 4 Wm. IV., c.
42, sec. 23.
" The following appear to be the sort of variances
which are amendable . In an indictment for bigamy, a
woman described as a 'widow' who is proved to be
unmarried. — R. v. Deeley, 1 Moo. C. G. 303 ; or as
'Ann Gooding,' where the register described her as
' Sarah Ann Gooding : ' R. v. Gooding, C. & M. 297.
In an indictment for night poaching describing a wood
as ' The Old Walk,' its real name being ' The Long
Walk.'— R. v. Owen, 1 Moo. G. G. 118. In an indict-
ment for stealing ' a cow,' which was 'a heifer;' Cooke's
case, 1 Leach, 105; 'a sheep,' which turned out to be 'a
jamb.'— R. v. Loom, 1 Moo. C. G. 160; or 'ewe.' — R. v.
Puddifoot, 1 Moo. C. C. 247; 'a filly,' which was a
' mare : ' R. v. Jones, 2 Russ. 364 ; ' a spade,' which
turned out to be the iron part, without any handle. — R. v.
Stiles, 2 Russ. 316. So in an indictment for a nuisance,
PROCEDURE ACT. 927
by not repairing, or by obstructing a highway the termini
of the highway, might be amended. So where an indict-
ment alleges a burglary, or house-breaking, in the parish
of St. Peter, in the county of W., and it appears that only
part of the parish is situated in such county, the indict-
ment may be amended. — R. v. Brookes, C. & M. o-4'i ;
.R. v. Jackson, 2 Buss. 49, 76.
" Such are some of the instances in which amendments
would clearly be right, but it is easy to suggest other
cases in which an amendment ought not to be made.
Suppose, on the trial of an indictment for stealing a
sheep, evidence were given of stealing a cow, or
versd, or on an indictment for stealing geese, it were
proposed to prove stealing fowls'; these are cases in which
no amendment ought to be made ; it is impossible to
conceive that the grand jury can have made such a
mistake, and the offence, though in law the same, and
liable to the same punishment, is obviously as different
as if it were different in law, and liable to a different
punishment.
" Many decisions have been rendered by the courts in
civil cases as to the instances in which amendments ou<;ht
to be made, and some of the principles laid down in those
decisions may form a useful guide in questions arising
under this clause, and they are, therefore, here introduced.
" It has been well laid down by a great judge, that the
fairest test of whether a defendant can be prejudiced by
an amendment is this : ' Supposing the defendant comes
with evidence that would enable him to meet the case as
it stands on the record unamended, would the same enable
him to meet it as amended:' per Eolfe, B., Cooke v.
Strafford, 13 M. & W. 379. If, whatever would be
available as a defence under the indictment, as it originally
928 PROCEDURE ACT.
stood, would be equally so after the alteration was made,
and any evidence the defendant might have would be
equally applicable to the indictment in the one form as in
the other, the amendment would not be one by which the
defendant could be prejudiced in his defence, or in a
matter material to the merits. — Gurfordv. Bailey, 3 M. &
G. 781. If the transaction is not altered by the amend-
ment, but remains precisely the same, the amendment
ought to be allowed. — Cooke v. Stratford, 13 M. & W.
379. But if the amendment would substitute a different
transaction from that alleged, it ought not to be made :
Perry v. Watts, 3 M . & G. 775 ; Brashier v. Jackson, 6
M. & W. 549 ; and the court will look at all the
circumstances of the case to ascertain whether the trans-
action would be changed by the amendment. If the
amendment would render it necessary to plead a different
plea, the amendment ought not lo be made. — Perry v.
Watts, -3 M. & G. 775 ; Brashier v. Jackson, 6 M. & W.
549.
" It was laid down in two cases of perjury, which were
tried some years ago, that amendments in criminal cases
ought to be made sparingly under the 9 Geo. IV. c. 15 ;
R. v. Cooke, 7 C. & P. 559 ; R. v. Hewins, 9. C. &. P. 786.
These cases occurred at a time when amendments in cri-
minal cases were looked upon with great disfavor; but
the opinion of the Legislature, evidenced by the 11-12 V.,
c. 46, s. 4, the 12-13 V., c. 45, sec. 10, and the present
statute, clearly is in favor of amendments being made in
all cases where the amendment is not material to the
merits, and the prisoner is not prejudiced by it. In civil
suits, the 9 Geo. IV. c. 15, and the 3 4 Win. IV. c. 42,
sec. 23, being remedial acts, have always received a liber-
al construction ; Smith v. Brandram, 2 M. & G. 244 ;
PROCEDURE ACT. 929
Smith v. Knoweldon, 2 M. & G. 561; Sainsbury v.
Matthews, 4 M. & W. 343; and it has been held, that the
fact of an action being a harsh and oppressive proceeding
on the part of a landlord, who was taking advantage of a
forfeiture in order to get possession of property on which
the defendant had laid out a large sum of money, was not
a consideration which ought to influence a judge against
allowing an amendment ; for if the amendment did not
prejudice the defendant in his defence it ought to be
allowed. — Doe J. Marriott v. Edwards, 5 B. <£• A. 1065.
" In fact the Legislature has carefully specified the
questions to be considered previous to making an amend-
ment ; these are, 1st, whether the variance be material to
the merits of the case ; and, 2ndly, whether the defendant
may be prejudiced by the amendment in his defence on
such merits. These are plain and simple questions, and
form a certain guide for the determination of each case ;
and if the courts, as they certainly ought, will only deter-
mine each case with reference to these questions alone,
there can be little doubt that there will be an uniformity
in the decisions upon this clause. But if, contrary to the
plain intention of the Legislature, any court shall, on the
ground of any supposed hardship or otherwise, refuse to
make an amendment of a variance not material to the
merits, and whereby the defence will not be prejudiced in
his defence on the merits, uncertainty of decisions will
necessarily arise, and the beneficial effect of this clause be
much diminished. The courts, in considering the propriety
of making an amendment, should ever remember that the
great object of the statute is to cause every case to be deter-
mined according to the very right and justice of the case
upon the merits.
" The amendment must be made in the course of the trial,
KKK
930 PROCEDURE ACT.
and certainly before the jury give their verdict, because
the trial is to proceed and the jury are to give their opinion
upon the amended record : per Alderson, B., Brashier v.
Jackson, 6 M. & W. 549. It would be better, indeed, in
all cases to make it immediately before any further evid-
ence is given, and where the amendment is ordered in the
course of the case for the prosecution, it certainly should
be made before the defence begins, for it is to the amended
record that the defence is to be made.
" It may be observed, that as the power to amend is
vested entirely in the discretion of the courts, a case can-
not be reserved under the 11-12 V., c. 78 (establishing
the court of crown cases reserved), as to the propriety of
making an amendment, as that statute only authorizes the
reservation of ' a question of law.' If, however, a case
should arise in which the question was, whether the court
had jurisdiction to make a particular amendment — in
other words, whether a particular amendment fell within
the term of the statute, there the court might reserve a case
for the opinion of the judges as to that point, as that
would clearly be a mere question of law.' — Lord Campbell's
Acts, by Greaves, p. 2.
The English statute is not exactly in the same terms as
ours ; it reads thus ;
" From and after the coming of this act into operation,
whenever on the trial of any indictment for any felony or
misdemeanor there shall appear to be any variance between
the statement in such indictment and the evidence offered
in proof thereof, in the name of any county, riding,
division, city, borough, town, corporate parish, township
or place mentioned or described in any such indictment,
or in the name or description of any person or persons,
or body politic or corporate, therein stated or alleged to be
PROCEDURE ACT. 931
the owner or owners of any property, real or personal,
which shall form the subject of any o fence charged therein,
or in the name or description of any person or persons,
body politic or corporate, therein stated or alleged to be
injured or damaged, or intended to be injured or
damaged by the commission of such offence, or in the
Christian name or surname, or both Christian name and
surname, or other description whatsoever of any person
or persons whomsoever therein named or described, or in
the name or description of any matter or thing what-
soever therein named or described, or in the ozunership
of any property named or described therein, it shall and
may be lawful for the court before which the trial shall be
had, if it shall consider such variance not material la the
merits of the case, and that the defendaut cannot be pre-
judiced thereby on his defence on such merits, to order
such indictment to be amended according to the proof by
some officer of the court or other person. "
It will be seen that all the words above cited in italics
are replaced in our statute by the words, " in names, dates,
places, or other matters or circumstances therein men-
tioned," which cover all the subjects mentioned in the
English statute, and have, besides, a more extensive
meaning.
In the English statute, the words " if it shall consider
such variance not material to the merits of the case " show
clearly that there it is the variance which must be not
material, whilst in our statute it is the names, dates,
places, or other matters or circumstances which must be
not material to the merits of the case.
Another difference between the two statutes consists in
that, in the Imperial Act, as interpreted by Greaves, and it
must be remembered that he framed it, it is the amend-
932 PROCEDURE ACT.
ment by which the defendant must not be prejudiced,
whilst, in our statute, it is the misstatement which must
not prejudice the defendant in his defence on the merits.
This certainly seems an error in our statute. The misstate-
ment, as long as it remains, can prejudice the prosecutor,
not the defendant, whilst the amending of that misstate-
ment is what the legislator did not intend to allow, when
the defendant could suffer from such an amendment in his
defence on the merits. — See 3 Russ. 321; and Greaves'
remarks, ante, on the English Statute.
Greaves' MSS note. — " In my Preface to Lord Campbell's
Acts, I adverted to the great discussion and great difficulty
encountered in obtaining the limited power of amendment
there mentioned ; it was this that led to the specification
of the particulars in which amendments might be made,
and to the rejection of general words at the end, by which
it was intended that every other variance should be amen-
dable if the defendant could not be prejudiced thereby in
his defence on the merits. The alteration in the Canada
Act, from particulars to generalities, is perfectly right.
But the other alterations are much to be regretted. In
the original clause it is the variance which must be not
material ; as I read the new clauses it is the matter or
circumstance that must be not material. It seems that
the words " not material " must refer to the immediately
preceding words, and cannot refer to " variance," by correct
grammatical construction, and the subsequent words " the
misstatement of which " make this perfectly clear ; for
there cannot be a misstatement (in the indictment) of a
variance. Fatal variances only occur where the matter,
which the evidence negatives or fails to prove, is material,
and therefore very serious questions may arise as to the
power to amend.
PROCEDTJRE ACT. 933
" The words " the defendant cannot be prejudiced thereby
(by the amendment) in his defence on such merits " are
the very pith of the clause in the original. But, as is
extremely well pointed out at p. 332 (Vol. 2, of 1st edition
of Taschereau's Crim. Acts,) it is not the defendant, but the
prosecutor, who is prejudiced by a misstatement, ubi supra.
Another objection to the new clause is that by the
original act, the court may amend " if it shall consider
such variance not material," etc. ; whereas the new clause
omits this altogether, and makes the question turn upon
the very words of the clause ; and the insertion of " may "
afterwards before "order" is by no means equivalent or
a substitution for the omitted words ; but is only a
change of the word, from before to after " not material," etc.
Section 242 is an enactment ex majori cauteld, and
section 243 is intended to prevent any question being
raised by writ of error as to any amendment that might
be made ; Lord Campbell's acts, by Greaves, page 10 ; 1
Taylor, Ev., par. 205 ; but, whilst iu England, the pro-
vision re-enacted in our section 243 applies to all amend-
ments made under the act, including those made in virtue
of the enactment reproduced in section 143 of our Proce-
dure Act (see ante,) it is clear that the substitution of the
words " as aforesaid " in the said section 243 of our act for
the words "under the provisions of this act" in the
English corresponding clause, has the effect to render the
enactment not applicable to amendments made under the
said section 143 of our Procedure Act, and that iu the case
of such an amendment having been made, it must so
appear, if a formal record has to be drawn up. The same
may, perhaps, be said of any amendment under sec-
tion 237.
934 PROCEDURE ACT.
Greaves, in 3 Russ. 324, has the following remarks on
the English statute ; —
" It has been well laid down by a very learned judge
(Byles, J., in R. v. Welton, 9 Cox, 297,) that a statute like
the 14-15 V., c. 100, should have a wide construction, and
should not be interpreted in favor of technical strictness,
and there are very strong reasons why a liberal construc-
tion should be made on such a statute. If a prisoner is
acquitted on the ground of a variance, he may be again
more correctly indicted, and wherever this course is
adopted, the effect of an acquittal on such a variance is to
put both the prosecutor and prisoner to additional trouble
and expense. And in case where no fresh indictment is
preferred, the result is that the costs of the prosecution are
thrown away, and an offender, possibly a very notorious
one, escapes the punishment he deserves. In every case
where an acquittal takes place in consequence of a
variance, the court may order a fresh indictment to be pre-
ferred, and the prisoner to be detained in prison or
admitted to bail till it is tried, and it may be well for the
court, where a variance occurs, to consider whether the
prisoner might not fairly be presented with the option
either of having the amendment made or of being indicted
anew in a better form."
WHEN THE AMENDMENT MUST BE MADE.
It had been laid down in R. v. Rymes, 3 C. & K. 326,
that an amendment should not be allowed after the counsel
for the defence has addressed the jury, but this case is now
no authority, and an amendment may be allowed after the
prisoner's counsel has addressed the jury. — R. v. Fullarton,
6 Cox, 194.
PROCEDURE ACT. 935
But it must be made before verdict. — R. v. Frost, Dears.
474; R. v. Larkin, Dears. 365 ; R. v. Oliver, 13 Cox, 588.
rt Upon full consideration," says Greaves, 3 Riiss. 329,
"it seems that the verdict is the dividing line. Any
one familiar with criminal trials must have met with
cases where variances have not been discovered until
just before the verdict is given, and the only limit to the
time for amendment is in the words ' on the trial,' and the
trial is clearly continuing until the verdict, as the power to
amend is given 'whenever on the trial' there shall appear
to be any variance.
" Before making an amendment the court should receive
aH the evidence bearing upon the point ; and as this is a
question to be determined by the court, but is not to be
left to the jury, the evidence bearing upon it which may
be in the possession of the prisoner, may be interposed
when the point arises in the course of the case for
the prosecution, and this is much the best course, as
the court is thereby enabled to dispose of the point at
once ; indeed, it is now settled that in all cases, whether
civil or criminal, where a question is to be decided by the
court, the proper course is for the judge to receive the
evidence on both sides at once, and then to determine the
question."
DECISIONS OX THE STATUTE.
The clause gives no power to amend the same identical
particular more than once, and the court will not amend an
amendment. — R. v. Barnes, L. R. 1 C. C. 45.
And when an indictment is amended at the trial, the
court of crown cases reserved cannot consider it as it
originally stood, but only in its amended form. — R. v.
Pritchard, L. & C. 34 ; R. v. Webster, L. & C. 77.
Under this statute, an amendment in the name of the
936 PROCEDURE ACT.
owner of stolen property, by substituting a different owner
than the one alleged, may be made at the trial. — R. v.
Vincent, 2 Den. 464; R. v. Senecal, 8 L. C. J. 287. See
Cornivall v. R. 33 U. C. Q. B. 106, and R. v. Jackson,
19 U. C. C. P. 280.
In R. v. Welton, 9 Cox, 297, the prisoner was charged
with throwing Annie Welton into the water with intent to
murder her; there being no proof of the name of the child,
it was held, by Byles, J., that the indictment might be
amended by striking out " Annie Welton" and inserting
' a certain female child whose name is to the jurors
unknown."
An indictment alleged that a footway led from a turn-
pike-road into the town of Gravesend, but the highway was
a carriage way from the turnpike-road to the top of
Orme House Hill, and from thence to Gravesend it was a
footway, and the nuisance alleged was between the top of
Orme House Hill and Gravesend ; it was held that the
indictment might be amended by substituting a description
of a footway running from Orme House Hill to Gravesend
as this appeared to be the very sort of case for which the
statute provides. — R. v. Sturge, 3 E. & B. 734.
Where an indictment for perjury alleged that the crime
was committed on a trial for burning a barn, and it was
proved that the actual charge was one of firing a stack of
barley, it was held that the words stack of barley might be
inserted instead of barn. — R. v. Neville, 6 Cox, 69.
Where the indictment stated that the prisoner had
committed perjury, at the hearing of a summons before
the magistrates, charging a woman with being " drunk "
whereas the summons was really for being " drunk and
disorderly," the court held that it had power, under this
statute, to amend the indictment by adding the words " and
disorderly." — R. v. Tymms, 11 Cox, 645.
PROCEDURE ACT. 937
In an indictment for perjury, perj my was alleged to have
been committed at a petty sessions of the peace, at Tiverton,
in the county of Devon, before John Lane and Samuel Garth,
then respectively being justices of the peace assigned to
keep the peace in and for the said county, and acting in
and for the borough of Tiverton, in the said county. It
appeared by the proof that these gentlemen were justices
for the borough of Tiverton only, and were not justices for
the county. Blackburn, J., allowed to amend the indict-
ment by striking out the words, the said county, so as to
make the averment be, "justices assigned to keep the peace
in and for, and acting in and for the borough of Tiverton,
in the said county." The court of criminal appeal held
that the judge had power so to amend. — R. v. Western, 11
Cox, 93.
The secretary of a friendly society, of which A. B. and
others were the trustees, was charged with embezzling
money belonging to the society. In the indictment, the
property was laid a3 of "A. B. and others," without alleg-
ing that they were trustees of the society : Held, that the
indictment might be amended by adding the words, "trus-
tees of." — R. v. Marks, 10 Cox, 367; see R. v. Stne'cal, 8
L. C. J. 287.
The description of an act of parliament, in an indictment
may be amended by the court of criminal appeal. — R. v.
Westley, Bell, C. C. 193.
In an indictment for larceny of property belonging to a
banking company, the property was laid to be in the
manager of the bank ; the banking business was carried on
by a joint-stock banking company, and there were more
than twenty partners or shareholders. The judge amended
the indictment by stating the property to be in " W. (one
of the partners) and others : " Held, that this amend-
938 PROCEDURE ACT.
ment was right. — R. v. Pritchard, L. & C. 34, 8 Cox,
461.
But an amendment changing the offence charged to
another offence should not be allowed. Where the pris-
oner was indicted for a statutable felonious forgery, but the
evidence only sustained a forgery at common law, the
prosecutor was not allowed to amend the indictment by
striking out the word " feloniously," and thus convert a
charge of felony into one of misdemeanor.-— R. v. Wright,
2 F. & F. 320/
So upon an indictment for having carnal knowledge of
a girl between ten and twelve years of age, it appearing by
the proof that she was under ten, Maule, J., held that the
indictment could not be amended : R. v. Shott, 3 C. & K.
206. The offence as charged in this case was a misdemea-
nor; the offence as proved, and as desired to be substi-
tuted by amendment, was a felony, and a felony cannot,
by amendment, be substituted for a misdemeanor ; or vice
versd.—See R. v. Wright, 2 F. & F. 320.
The words " felonious " or " feloniously, " if omitted,
can never be allowed to be inserted : 1 Russ. 035, note a
by Greaves. An amendment altering the nature or quality
of the offence charged cannot be allowed.
When an indictment against two bankrupts alleged that
they embezzled a part of their personal estate to the value
of £10 — to wit, certain bank-notes and certain moneys,
and it rather seemed that the money converted was foreign
money, it was held that "moneys" meant English moneys,
and the court refused to amend the indictment. — R. v.
Davison, 7 Cox, 158. But Greaves is of opinion that the
case seems to be one in which an amendment clearly might
have been made. — 3 Russ. 327.
An indictment alleged that the prisoner pretended that
PROCEDURE ACT. 939
he had served a certain order of affiliation on J. Bell; but
the evidence was, that the prisoner had said that he had
left the order with the landlady at the Chesterfield Anns,
where Bell lodged, he being out ; it was held that this
variance was not amendable under the English statute, as
it was not a variance in the name or description of any
matter or thing named or described in the indictment. — R.
v. Baifey, 6 Cox, 29. But in Canada it seems that such
a variance would be amendable, being covered by the
more general terms of the statute.
A woman charged with the murder of her husband was
described as "A., wife of J. O., late of ," the judge
ordered this to be amended by stricking out the word
" wife,'' and inserting the word " widow." — R. v. Orchard,
8 C. & P. 565.
"Where in an indictment for false pretences, the words
" with intent to defraud " are omitted, the indictment is
bad, and cannot be amended under this statute : per Lush,
J., R. v. James, 12 Cox, 127.
An indictment charged the prisoner with stealing nine-
teen shillings and sixpence. At the trial, it was objected
by the prisoner's counsel that there was no case, for the
evidence showed that if the prisoner was guilty of stealing
anything, it was of stealing a sovereign. Thereupon the
court amended the indictment by striking out the words
nineteen shillings and sixpence," and inserting in lieu
thereof "one sovereign." The jury found the prisoner
guilty of stealing a sovereign. Held, by the court of
criminal appeal, that the court had power to amend under
the 14-15 V., c. 100, sec. l.—R. v. Gumble,12 Cox, 24S.
The words " with intent to defraud " allowed to be
struck out of an indictment. The " merits of the case "
in the above sec. 238 means the justice of the case as regards
940 PROCEDURE ACT.
the guilt or innocence of the prisoner, and " his defence
on the merits " means a substantial, and not a formal or
technical defect.— J?, v. Cronin, 36 U. C. Q. B. 342.
If an indictment for libel contains merely a general
allegation that the newspaper in which it appeared circu-
lated in the district of Montreal, an amendment for the
purpose of alleging publication in that District of the spe-
cial article complained of is not allowable. — R. v. Hide-
son, 3 L. N. 139.
24:4. In making up the record of any conviction or acquittal on
any indictment, it shall be sufficient to copy the indictment with the
plea pleaded thereto, without any formal caption or heading; and the
statement of the arraignment and the proceedings subsequent thereto
shall be entered of record in the same manner as before the passing
of this Act, subject to any such alterations in the forms of such entry
as are, from time to time, prescribed by any rule or rules of the sup-
erior courts of criminal jurisdiction respectively, which rules shall
also apply to such inferior courts of criminal jurisdiction as are therein
designated.— 32-33 V., c. 29, s. 77.
There is no statutory enactment, in England, corres-
ponding to this one, and there the caption has, yet, to be
entered of record immediately before the indictment, when
the record has to be made up in form.
The record of judicial proceedings in criminal cases is
always, in the first instance, taken down by the clerk of
the court in the way of short entries made upon his docket,
or of indorsements upon papers filed and the like. When
he has to make the extended record, or record proper, resort
is had to these docket entries, to the documents filed, and
to the several indorsements upon them, which serve as
memoranda for him. The record, formally made up, is the
history or narration of the proceedings in the case, stat-
ing :
1st. The court before which the indictment was found,
and where and when holden.
PROCEDURE ACT. 941
2ndly. The grand jurors by whom it was found.
3rdlv. The time and place where it was found, and that
the indictment was found under oath.
(These three particulars form the caption.)
4thly. The indictment.
5thly. The appearance or bringing in of the defendant
into court.
6thly. The arraignment.
7thly. The plea.
8thly. The joinder in issue, or similiter.
9thly. The award of the jury process.
lOthly. The verdict.
llthly. The allocutus, or asking of the defendant why
sentence should not be passed on him.
12thly. The sentence.
It is probably now only when a writ of error is issued or
to prove autrefois acquit or autrefois convict (section 146,
ante,) that it will be necessary to draw up a formal record,
as sections 230 and 231 (see ante) of the Procedure Act
take away the necessity of so doing in the other cases
where it could have been wanted.
The necessity of a formal caption or heading to a made-
up record is taken away by section 244.
The caption of the indictment is no part of the indict-
ment itself, but only the style or preamble thereto, the
formal history of the proceedings before the grand jury. —
2 Hale, 165; 1 Starkie, Or. PL 233; 2 Hawkins, 349; 1
Chit. 325; Archbold, 37 ; 1 Bishop, Or. Proc. 655.
The form of the caption is as follows :
Dominion of Canada. \ In the Court of Queen's Bench,
Province of Quebec, i Crown Side.
District of Quebec. — Be it remembered, that at a term
of the Court of Queen's Bench, crown side, holden at the
942 PROCEDURE ACT.
city of Quebec, in and for the said district of Quebec, on
the day of (the first day of the term,) in
the year of our Lord upon the oath of (insert the
names of the grand jurors) good and lawful men of the
said district, now here sworn and charged to inquire for
our Sovereign Lady the Queen, and for the body of the
said district, it is presented in the manner following, that
is to say : (this ends the caption.)
Then the record continues to recite the indictment, etc.,
as follows, and by sec. 244 of the Procedure Act, may
commence here :
District of Quebec. — (The Jurors for our Lady the Queen,
upon their oath present,) that John Jones, on the fifth day
of June, in the year of our Lord one thousand eight hundred
and seventy, feloniously, wilfully and of his malice afore-
thought, did kill and murder one Patrick Ray, against the
peace of our Lady the Queen, her crown and dignity;
whereupon the sheriff of the aforesaid district is com-
manded, that he omit not for any liberty in his bailiwick,
but that he take the said John Jones, if he may be found
in his bailiwick, and him safely keep to answer to the
felony and murder whereof he stands indicted. And after-
wards, to wit, at the same term of the said Court of Queen's
Bench, before the said Court of Queen's Bench, on the said
day of , in the said year of our Lord :
here cometh the said John Jones under the custody of
William Brown, Esquire, sheriff of the district aforesaid
(in whose custody in the gaol of the district aforesaid, for
the cause aforesaid, he had been before committed), being
brought to the bar here in his proper person by the said
sheriff, to whom he is here also committed. And he, the
said John Jones, forthwith being demanded concerning the
premises in the said indictment above specified and charged
PROCEDURE ACT. 943
upon him, how he will acquit himself thereof, saith that
he is not guilty thereof, and therefore he puts himself upon
the country. And the honorable George Irvine, attorney
general of our said Lady the Queen, who prosecutes for our
said Lady the Queen in this behalf, doth the like. There-
fore let a jury thereupon immediately come before the said
court of free and lawful men of the said district of Quebec,
by whom the truth of the matter may be the better known,
and who are not of kin to the said John Jones, to recog-
nize upon their oath whether the said John Jones be guilty
of the felony in the indictment above specified or not
guilty ; because, as well, the said George Irvine, who prose-
cutes for our said Lady the Queen in this behalf, as the
said John Jones have put themselves upon the said jury.
And the jurors of the said jury, by the sheriff for this
purpose impannelled and returned — to wit (naming the
tuelve) — being called, come, who to speak the truth of and
concerning the premises being chosen, tried and sworn,
upon their oath, say that the said John Jones is guilty of
the felony aforesaid, on him above charged, in manner and
form aforesaid as by the said indictment is above supposed
against him. And thereupon it is forthwith demanded of
the said John Jones, if he hath or knoweth anything to say
why the said court here ought not, upon the premises and
verdict aforesaid to proceed to judgment against him ; who
nothing further saith, unless as he has before said. Where-
upon, all and singular the premises being seen and fully
understood by the said court here, it is considered and
adjudged by the said court here that the said John Jones be
taken to the common gaol of the said district of Quebec, from
whence he came, and that he be taken from thence to the
place of execution, on Friday, the day of next
ensuing, and there be hanged by the neck until he be dead j
944 PKOCEDUKE ACT.
and the court orders and directs the said execution to be
done on the said John Jones in the manner provided by
law.
If the defendant against whom an indictment has been
found, happen to be present in court, or in the custody of
the court, he may at once be arraigned upon the indictment
without previous process. — 1 Chit. 338 ; Archbold, 78.
Then the record, when made up, instead of the words
u whereupon the sheriff of the aforesaid district is com-
manded," etc., as in the above form, must read " Where-
upon, to wit, on the said day of at the
same term of the said Court of Queen's Bench, before the
said Court of Queen's Bench here cometh the said John
Jones under the custody of William Brown, Esquire,
sheriff of the district aforesaid (in whose custody, in the
gaol of the district aforesaid, he stood before committed)," etc.
In the report of the case of Mansell v. R., Dears. &
B. 375, may be seen a lengthy form of a record with all the
proceedings on the challenges of jurors ; also in R. v. Fox,
10 Cox, 502 ; Whelan v. R., 28 U. C. Q.B.2; Holloway
v. R., 2 Ben. 287 ; and 4 BlacJcstone, Appendix.
Two important and essential formalities must be remem-
bered in making up a record. 1st. Every adjournment of
the court must appear ; and. 2nd, at each sitting of the court
so adjourned, a special entry must appear of the presence
of the defendant.
In the case of Whelan v. R., cited supra, it was held in
Upper Canada, that if, notwithstanding sec. 244 of the
Procedure Act (sec. 52, ch. 99, Con. Stat. Can.), a formal
caption is prefixed to the indictment, this caption may be
rejected, if it proves defective.
In R. v. Aylett, 6 A. & E. 247, and R. v. Marsh, 6 A.
& E. 236, it was held that it is not necessary to name the
grand jurors in the caption.
PROCEDURE ACT. 945
FORMAL DEFECTS CCRED AFTER VERDICT.
2-4*5. No judgment upon any indictment for any felony or misde
meanor, whether after verdict or outlawry, or by confession, default
or otherwise, shall be stayed or reversed for want of the averment of
any matter unnecessary to be proved, — nor for the omission of the
words "as appears by the record," or of the words " with force and
arms," or of the words " against the peace," nor for the insertion of
the words " against the form of the statute," instead of the worda
" agains the form of the statute?," or vice versa, or the omission of such
words or words of like import, — nor because any person mentioned in
the indictment is designated by a name of office or other descriptive
appellation, instead of his proper name, nor for want of or any imper-
fection in the addition of any defendant or other person, — norfor omit-
ting to state the time at which the otfence was committed in any case
where time is not of the essence of the offence, nor for stating the
time imperfectly, nor for stating the offence to have been committed
on a day subsequent to the finding of the indictment or exhibiting the
information, or on an impossible day, or on a day that never happened
— norfor want of the statement of the value or price of any matter or
thing, or the amount of damage, injury or spoil, in any ease where
such value, price, d image, injury or spoil, is not of the essence of the
offence, — nor for the want of a proper or perfect venue, where the
court appears by the indictment to have had jurisdiction over the
offence.— 32-33 Y., c. 29, a. 78.
This clause is taken from the 7 Geo. IV. c. 64, s. 20
of the Imperial Statutes ; the words given in italics are not
in the Imperial Act.
See Heymann v.R., 12 Cox, 383 and R. v. Knight, 14
Cox, 31 as to aider by verdict and what defects are cured
by verdict.
Verdict will only cure defective statements. An absolute
and total omission in the indictment is not cured by ver-
dict.— R. v. Bradlaugh, 14 Cox, 68.
No amendment allowed after verdict. — R. v. Oliver, 13
Cox, 588.
In an indictment for perjury, alleged to have been com-
mitted in a certain cause, " wherein one Adrien Girardin,
LLL
946 PKOCEDURE ACT.
" of the Township of Kingsey, in the district of Arthabaska,
«* trader, and Thomas Ling, of the same place, farmer, was
"defendant." The omission of the words was plaintiff in
the description of the plaintiff held fatal, and conviction
quashed.— R. v. Ling, 5 Q. L. R. 359 ; 2 L. N. 410.
In an indictment for obstructing an officer of excise under
27-38 V., c. 3 ; Held — that the omission in the indictment of
the averment that at the time of the obstruction the officer
was acting in the discharge of his duty under the authority
of the said statute was not a defect of substance, but a for-
mal error, which was cured by the verdict. — Spehnan v.
R.,13 L. C. J. 154.
The defendant was indicted in the District of Beauhar-
nois for perjury committed in the District of Montreal, but
there was no averment in the indictment that he had been
apprehended or that he was in custody in the District of
Beauharnois at the time of finding the indictment. — Held
bad, even after verdict. — R. v. Lynch, 20 L. C. J. 187 ; 7
R. L. 553.
A defect such as the omission of the word " company '»
in an indictment for embezzling money from the Grand
Trunk Railway Company of Canada, is cured by verdict.
— R. v. Foreman, 1 L. C. L. J. 70.
Defect in an indictment cured after verdict. — R. v.
Stansfield, 8 L. N. 123; also in R. v. Stroulger, 16
Cox, 85.
An indictment too vague and too general in its language
is not cured by verdict. — White v. R., 13 Cox 318.
246. Judgment, after verdict upon an indictment for any felony
or misdemeanor, shall not be stayed or reversed for want ofa similiter,
— nor by reason that the jury process has been awarded to a wrong
officer, upon an insufficient suggestion, — nor for any misnomer or
misdescription of the officer returning such process, or of any of the
jurors, — nor because any person has served upon the jury who was
PROCEDURE ACT. 9-47
not returned as a juror by the sheriff or other officer ; and where the
offence charged is an offence created by any statute, or subjected to a
greater degree of punishment by any statute, the indictment shall,
after verdict, be held sufficient, if it describes the offence in the words
of the statute creating the offence, or prescribing the punishment,
although they are disjunctively staled or appear to include more than
one offence, or otherwise. — 32-33 Y., c. 29, s. 79.
This clause is taken from 7 Geo. IV. c. 64, sec. 21 of
the Imperial Statutes, except the words given in italics.
Under it, the first defect cured by verdict is the want
of a similiter. The similiter is the joinder iu issue, con-
tained, in the record (see, ante, under section 244 for form
of a record) in these words : "And who prosecutes
for our said Lady the Queen in this behalf, doth the like."
The second defect cured by verdict under this clause
is the wrongful award of the jury process upon an insuf-
ficient suggestion. The jury process is usually directed
to the sheriff, but if one of the parties represent that
the sheriff is interested, or of kin to one of the parties, or
in any way disqualified to act in the case (see Archbold,
153, for grounds, against sheriff, of challenge to the array),
an entry of this suggestion is made on the back of the
indictment first, and then on the record, when it is made
up formally ; and then the jury process is awarded to the
coroner, if not disqualified, and if disqualified, then to two
elisors named by the court, and sworn, in which last case
the return is final, and no challenge to the array is
allowed; Jervis, coroners, 54; 1 Chit. 514; Wharton,
Law Lexicon, Verbo " elisors ;" Archbold, 154. By the
above clause, these formalities cannot be questioned or
investigated after verdict, and no misnomer or misdescrip-
tion of the officer returning the process or of any of the
jurors can invalidate the verdict. — See s. 247, -post.
This clause says thirdly that no motion in arrest of
948 PROCEDURE ACT.
judgment or writ of error will avail on the ground that
any person has served upon the jury who was not returned
as a jur or by the sheriff or other officer. — See Dovey v.
Hobson, 2 Marsh. 154.
The fourth and most important part of this section of
the Procedure Act consists in the words : " And where
the offence charged is an offence created by any statute,
or subjected to a greater degree of punishment by any
statute, the indictment shall, after verdict, be held suffi-
cient, if it describes the offence in the words of
the statute creating the offence, or prescribing the
punishment, although they be disjunctively stated or
appear to include more than one offence, or otherwise.''1
What is the meaning of these two last words " or other-
wise" is not clear. " Although they be disjunctively
stated " means " although the words be disjunctively
stated " " as unlawfully or maliciously " instead of " un-
lawfully and maliciously."
The words " or appear to include more than one offence"
are not new law : see R. v. Ferguson, 1 Dears. 427 ; R. v.
Heywood, L. & C. 451 ; Archbold, 69 ; and, remarks under
section 105, p. 715, ante; also R. v. Davies, 5 Cox, 328.
The words " subjected to a greater degree of punish-
ment " mean greater than it was at common law, as for
instance, in s. 38 of c. 162, p. 197, ante.
The following decisions on the interpretation of the
part of this clause rendering valid, after verdict, indict-
ments describing the offence in the words of the statute
creating it, or subjecting it to a greater degree of punish-
ment, may be usefully inserted here.
In R. v. LarJcin, Dears. 365, it was held that if an
indictment charging a felonious receiving of stolen goods,
does not aver that the prisoner knew the goods to have
PBOCEDtTRE ACT. 949
been so stolen, it is defective, and the defect is not cured
by verdict.
An indictment under 1-4-15 V., c. 100, s. 49, for pro-
curing the defilement of a girl by false pretences, false
representations or other fraudulent means, did not set
out or allege what were the false pretences, false repre-
sentations or other fraudulent means. The defendant
having been found guilty, brought a writ of error on this
ground, and the conviction was quashed. — Howard v. R.,
10 Cox, 54.
In R. v. Warshaner, 1 Moo. C. C. 466, an indictment
for having unlawfully in possession five florins, was held
sufficient after verdict, though not showing what florins
were, and their value, it being a foreign coin, as the
indictment described the offence in the words of the statute
creating it.
After verdict, defective averments in the second count
of an indictment are cured by reference to sufficient aver-
ments in the first count. — R. v. Waverton, 2 Den. 340.
If, before s. 112 of the Procedure Act, in an indictment
for obtaining property by false pretences, it did not appear
who was the owner of the property so alleged to have
been unlawfully obtained, the defect was not cured by
verdict, and notwithstanding the above clause 246 of the
Procedure Act, in such a case, a conviction, upon a writ
of error, would have been quashed. — R. v. Bullock, h
653 ; Sill v. R. Dears. 132 ; R. v. Martin, 8 A & E.
481.
In R. v. Boiven, 13 Q. B. 790, the indictment was for
obtaining by false pretences, and did not contain the word
"knowingly " with " unlawfully " but the court held the
conviction good after verdict, as the indictment was in the
words of the statute. — See Hamilton v. R., 9 Q. B. 271.
950 PROCEDURE ACT.
But an indictment for felony must always allege that
the act which forms the subject matter of the indictment
was done feloniously ; if an indictment for felony does not
contain the word " feloniously," it is bad, though in the
words of the statute creating the offence, and is not cured
by verdict. — R. v. Gray, L, & C. 365.
If an indictment under sec. 83 of the Larceny Act, c. 164,
p. 444, ante, alleges the goods to have been " unlawfully
obtained, taken, and carried away, and that the receiver
knew them to have been unlawfully obtained " instead of
" unlawfully obtained by false pretences'' the indictment
is bad and not cured by verdict. See R. v. Wilson, 2 Moo.
C. C. 52.
An indictment under the same section charged that de-
fendant " unlawfully did receive goods which had been un-
lawfully, and knowingly, and fraudulently obtained by false
pretences with intent to defraud, as in this count before
mentioned," but omitting to set out what the particular
false pretences were. Held, that the objection, if at
any time valid, was cured by the verdict of guilty. — R. v.
Goldsmith, 12 Cox, 479.
Would an indictment for obtaining property by false
pretences, not setting out the false pretences, be good after
verdict ?
In jR. v. Goldsmith, 12 Cox, 483, Chief Justice Bovill
said : " I am not aware whether the question has
been raised after verdict since the passing of the Statute of
7-8 Geo. IV., c. 64." (sec. 246 of our Procedure Act.)
Section 278, post, enacts that the forms given will
be sufficient, and the form given for obtaining by false pre-
tences does not state what are the false pretences. It is,
however, doubtful notwithstanding the form given with the
Procedure Act, if, before verdict, such an indictment would
be sufficient, if not alleging what are the false pretences.
PROCEDURE ACT. 951
But, after verdict, it would seem to be sufficient, both
at common law, and under section 246 of the Procedure
Act, by the remarks of the judges in R. v. Ooldsmith, 12
Cox, 482; R. v. Watkinson, 12 Cox, 271 ; and Heymann
v. R., 12 Cox, 383. Howard v. R., 10 Cox, 54, cited ante,
is on another statute.
In R. v. Carr, 26 L. C. J. 61, the court quashed the in-
dictment on the ground of the omission therein of the
words " feloniously, wilfully, and of his malice afore-
thought," though the form given in the schedule of the
Procedure Act for the offence created by the clause under
which the prisoner was indicted has not these words.
In R. v. Beery, 26 L. C J. 129, the jury found the
prisoner guilty on the following count of the indictment,
under sec. 10, c. 20, 32-33 Vic. (s. 8, c. 162, p. 147, ante).
"And the jurors aforesaid, on their oath aforesaid, do
further present that the said Cornelius Deery, on the day
and year aforesaid, one Alfred Baignet feloniously and
unlawfully did wound, with intent thereby then to commit
murder."
The prisoner moved to stay the judgment, " because the
said second count of the said indictment is illegal, null and
void, and does not disclose any offence, inasmuch as the
crime therein charged is not alleged to have been commit-
ted with the malice aforethought of the said Cornelius
Deery." Upon a reserved case, the Court of Queen's Bench
held that, under sec. 246 of the Procedure Act, the count
of the indictment objected to was sufficient after verdict.
There seems to be another possible objection to the said
indictment. Is it sufficient in an indictment, under the
said section 10, of c. 20, 32-33 V., (s. 8. c. 162 p. 147, ante,)
for wounding with intent to murder, to aver simply " with
intent to commit murder " generally without naming the
952 PROCEDURE ACT.
person intended by the prisoner, or if his name is not
known, alleging " a person to the j urors unknown V
Chief Justice Jervis, in R. v. Lallement, 6 Cox 204, said
that, after verdiot, he had no doubt that " with intent to
commit murder " would be sufficient, being the words of
the statute, but doubted if such an indictment could not
be successfully demurred to.
And Greaves, 1 Russ. 1003, note g, and 1004, noteh,
says that it is questionable whether such an indictment is
sufficient, even after verdict, relying on R. v. Martin, 8
A. & E. 481, to say that in many cases it is not suffi-
cient, even after verdict, to follow the words of the sta-
tute. Against this opinion, the case of R. v. Ryan, 2
M. & Rob. 213, can be cited, where an indictment alleging
" with intent to commit murder " generally was prepared,
under the express direction of the court, and the prisoner
tried and convicted.
Then, the forms of indictment given in Archbold, under
sec. 11, 24-25 V., c. 100, and the following sections, all
contain a count, averring " with intent to commit mur-
der. " The question seems unsettled so far, and it will
be prudent, in all such indictments, to avoid such a count
as much as possible.
In R. v. Garr, 26 L. C. J. 61, the indictment was in
the following terms ;
"The jurors for our Lady the Queen, upon their oath,
present that John Carr, on the twentieth day of June, in
the year of our Lord one thousand eight hundred and
seventy-one, in the parish of St. Colomb de Sillery, in the
district of Quebec, did feloniously wound Lawrence Byrne,
with intent then and there to murder the said Lawrence
Byrne, against the form of the statute in such case made
and provided, and against the peace of our Lady the Queen,
her crown and dignity."
PROCEDURE ACT. 953
The prisoner, having been found guilty, moved in arrest
of judgment, " for that it is not alleged and charged against
the said John Carr, in and by the said indictment, that
he the said John Carr did wound the said Lawrence
Byrne, of the malice aforethought of him the said John
Carr. "
The presiding judge having reserved the case, the Court
of Queen's Bench held that the indictment was defective,
on the ground taken by the prisoner, and that the defect was
not cured by verdict.
There is this difference between this last case and R. v.
Beery, cited ante. In M. v. Beery, the indictment averred
" with intent to commit murder" generally, and was in the
express words of the statute, whi]st ini2. v. Carr the aver
ment of the intent was not " to commit murder," in the
words of the statute, but " with intent to murder the said
Lawrence Byrne." To " commit murder " means to com-
mit the crime known in law as " of malice aforethought to
kill and murder," whilst on an indictment charging that
the defendant murdered, without saying " of malice afore-
thought," the defendant can only be convicted of man-
slaughter.— 1 East, P. C. 345, 346. So in an indictment
for burglary, if the indictment avers that the defendant
did feloniously and burglariously break and enter
with intent to commit murder, it is sufficient ; whilst if the
averment as to the intent refers to any person in particular,
it must state "with intent feloniously, and of his malice
aforethought, to kill aud murder the said J. N." See 2
Bishop, Cr. Proc. 82, 145.
It is true that in these two cases of Beery and Carr, the
objection was that the indictment did not charge " felo-
niously and of his malice aforethought did wound ; " but if
the indictment in Carr's case had averred " feloniously did
954 PROCEDURE ACT.
wound with intent then and there feloniously and of his
malice aforethought to murder," it would certainly not have
been open to the objection taken ; and the forms given in
Archbold are " feloniously and unlawfully did wound with
intent to commit murder," whilst if the person the prisoner
intended to murder is known, the form is " feloniously and
unlawfully did wound with intent, thereby then feloniously,
wilfully and of his malice aforethought, the said J. N. to
kill and murder."
o There is a difference between an indictment which is bad
for charging an act which as laid is no crime, and an indict-
ment which is bad for charging a crime defectively. The
latter maybe aided by verdict, the former cannot. — R. v.
Waters, 1 Den., 356. See also, ante, remarks under section
143 of the Procedure Act.
When an indictment is quashed or judgment upon it
arrested for insufficiency or illegality thereof, the court will
order that a new indictment be preferred against the pris-
oner, and may detain the prisoner in custody therefor. — 1
Bishop, Cr. Proced. 739 ; 2 Hale, 237 : 2 Hawkins, 514 ;
R. v. Turner, 1 Moo. C. C. 239. — See Greaves' note in 3
Russ, 321 ; ante, under sec. 238-243.
In R. v. Vandereomb, 2 Leach 708, the jury, by the
direction of the court, acquitted the prisoners, as the charge
as laid against them had not been proved ; but as it result-
ed from the evidence adduced that another offence had been
committed by the prisoners, and as the grand jury were
not discharged, the prisoners were detained in custody, in
order to have another indictment preferred against them.
In R. v. Semple, 1 Leach, 420, the court quashed the
indictment, upon motion of the prisoner, upon the ground
of informality, but ordered the prisoner to be detained
till the next session. See, also, 1 Chit. 304.
PROCEDrRE ACT. 955
So, upon a demurrer, if the defendant succeeds, he only
obtains a little delay, for the judgment is that the indict-
ment be quashed, and the defendant will be detained
in custody until another accusation has been preferred
against him, except, of course, where the demurrer has
established that the defendant has not committed any legal
offence whatsoever, in which case he will be altogether
discharged from custody. — 1 Chit. 442.
In R. v. Gilchrist, 2 Leach, 657, the prisoner was found
guilty of forgery, but, upon motion in arrest of judgment,
the court held that the indictment, being repugnant and
defective, the prisoner should be discharged from it; but
that as the objection went only to the form of the indict-
ment, and not to the merits of the case, the prisoner should
be remanded to prison until the end of the session, to afford
the prosecutor an opportunity, if he thought fit, of prefer-
ing another and bettei indictment against him. See, also,
R. v. Pelf ry man, 2 Leach, 563.
In Archbold, page 166, it is said: Upon the delivery
of the verdict, if the defendant be thereby acquitted on the
merits, he is forever free and discharged from that accusa-
tion, and is entitled to be immediately set at liberty, unless
there be some other legal ground for his detention. If he
be acquitted from some defect in the proceedings, so that
the acquittal could not be pleaded in bar of another indict-
ment for the same offence, he may be detained to be
indicted afresh. So in 1 Chit. 649, and R. v. Knew-
lan<l, 2 Leach, 721.
An indictment having been held bad on demurrer, it was
quashed so that another indictment might be preferred, not
that defendants be discharged. — R. v. Tierney, 29 U. C. Q.
B. 181.
In R. v. Buhner, Montreal, Nov., 1881, though the
956 PKOCEDURE ACT.
indictment had been quashed on demurrer, the court refused
to liberate the prisoner, and ordered his detention till the
following term.
In R. v. Woodhall, 12 Cox, 240, the verdict was held to
be illegal, but the prisoners were bound over to appear at a
future session.
247. No omission to observe the directions contained in any Act
as respects the qualification, selection, ballotting or distribution of
jurors, the preparation of the jurors book, the selecting of jury lists,
the drafting panels from the jury lists or the striking of special juries,
shall be a ground for impeaching any verdict, or shall be allowed for
error upon any writ of error or appeal to be brought upon any judg-
ment rendered in any criminal case. — C. S. U. C, c. 31, s. 139.
This is a statute of Upper Canada extended to all the
Dominion. This clause does nut take away the right of
challenging the array.
A conviction, not by a special jury, in cases where the
statute enacts that an offence shall be tried by a special
jury, is a nullity.— B. v. Kerr, 26 U. C. G. P. 214.
COSTS.
248. When any person is convicted on any indictment of any
assault, whether with or without battery and wounding, or either of
them, such person may, if the court thinks fit, in addition to any
sentence which the court deems proper for the offence, be adjudged to
pay to the prosecutor his actual and necessary costs and expenses of
the prosecution, and such moderate allowance for loss of time as the
court, by affidavit or other inquiry and examination, ascertains to be
reasonable; anl unless the sums so awarded are sooner paid, the
offender shall be liable to imprisonment for any term not exceeding
three months, in addition to the term of imprisonment, if any, to
which the offender is sentenced for the offence. — 32-33 V., c. 20, s. 73.
24-25 V.,c. 100, s. 74.
Greaves' Note. — This and the following clause are new
in England ; they are taken from the 10 Geo. 4, c. 34, ss.
33, 34 (I.). It had long been the practice in England in
PROCEDURE ACT. 957
Such cases for the courts, after a conviction for an assault,
to allow compromises to be made between the parties, and
such compromises were legal. — Beeley v. Wingjield, 11
East, 46 ; Kerr v. Leeman, 6 Q. B. 308 ; 9 Q. B. 371.
Such compromises were usually made by the defendant
paying a sum of money to the prosecutor to idemnify him
for his expenses ; but where there was an obstinate defen-
dant, it frequently happened that no compromise could be
effected, and the court was sometimes placed in an invidious
position. These clauses place it in the power of the court
to do full justice, without regard to the wishes or consent of
either party.
See next section.
249. The court may, by warrant in writing, order such sum as is
so awarded, to be levied by distress and sale of the goods and chattels
of the offender, and paid to the prosecutor, and the surplus, if any,
arising from such sale, to the owner; and if such sum is so levied, the
offender shall be released from such imprisonment. — 32-33 V., c. 20,
s. 79. 24-25 V., c. 100, s. 75, Imp.
See remarks under preceding section. These two sec-
tions apply, it seems, to convictions under sections 14,
35, 36 of c. 162, offences against the person, and gene-
rally to any conviction for assault, including those under
sec. 191 of the Procedure Act.
RESTITUTION OF STOLEN PROPERTY.
250. If any person who is guilty of any felony or misdemeanor,
in stealing, taking, obtaining, extorting, embezzling, appropriating,
converting or disposing of, or in knowingly receiving any chattel,
money, valuable security, or other property whatsoever, is indicted
for such offence, by oi on behalf of the owner of the property, or his
executor or administrator, and convicted thereof, the property shall
be restored to the owner or his representative:
2. In every such case, the court before whom such person is tried
for any such felon}' or misdemeanor shall have power to award, from
lime to time, writs of restitution for the said property, or to order the
958 PROCEDUKE ACT.
restitution thereof in a summary manner; and the court may also, if
it sees fit, award restitution of the property taken from the prosecutor,
or any witness Jor the prosecution, by such felony or misdemeanor,
although the person indicted is not convicted thereof, if the jury
declares, as it may do, that such property belongs to such prosecutor
or witness, and that he toasunlawjully deprived of it by such felony or
misdemeanor :
3. If it appears before any award or order is made, that any valuable
security has been bond fide paid or discharged by any person liable to
the payment thereof, or being a negotiable instrument, has been bond
fide taken or received by transfer or delivery, by any person, for a just
and valuable consideration, without any notice or without any
reasonable cause to suspect that the same had, by any felony or mis-
demeanor, been stolen, taken, obtained, extorted, embezzled, con-
verted or disposed of, the court shall not award or order the restitution
of such security :
4. Nothing in this section contained shall apply to the case of any
prosecution of any trustee, banker, merchant, attorney, factor, broker,
or other agent intrusted with the possession of goods or documents of
title to goods, for any misdemeanor under " The Larceny Act." — 32-33
V, c. 21, s. 113. 24-25 V., c. 96, s. 100, Imp.
" It is to be observed that the proviso as to trustees,
bankers, &c., only excepts cases of misdemeanors from the
operation of this section, and leaves all cases of felony
within it." — 2 Russ. 355, note. The words in italics are not
in the English Act ; they were in the bill as passed in the
House of Lords, but were struck out by the select com-
mittee of the Commons. — Greaves' Cons. Acts.
The prisoners were convicted of feloniously stealing cer-
tain property. The j udge who presided at the trial made
an order, directing that property found in the possession of
one of the prisoners, not part of the property stolen, should
be disposed of in a particular manner. Held, that the
order was illegal, and that a judge has no power, either by
common law or by statute, to direct the disposal of chattels
in the possession of a convicted felon, not belonging to the
prosecutor. — R. v. Pierce, Bell C. ft 235. R. v. Cor-
for. of London, E. B. & E. 509.
PROCEDURE ACT. 959
The case of Walker v. Mayor of London, 11 Cox,
280, has no application in Canada. In R. v. Stancliffe,
11 Cox, 318, it was held that the present section applies
to cases of false pretences as well as felony, and that the
fact that the prisoner parted with the goods to a bond fide
pawnee did not disentitle the original owner to the restitu-
tion of the goods. — See 2 Buss. 355.
The court is bound by the statute to order restitution of
property obtained by false pretences and the subject of
the prosecution, in whose hands soever it is found ; and
so likewise of property received by a person knowing it to
have been stolen or obtained by false pretences ; but the
order is strictly limited to property identified at the trial
as being the subject of the charge, therefore it does not
extend to property in the possession of innocent third per-
sons which was not produced and identified at the trial as
being the subject of the indictment. — jR. v. Goldsmith, 12
Cox, 594.
An order of restitution of property stolen will extend
only to such property as is produced and identified in the
course of the trial, and not to all the articles named in
the indictment, unless so produced and identified and in
the possession of the court. — R. v. Smith, 12 Cox, 597.
It was held, on this clause, (R. v. Atkin, 18 L. C. J.
23 J that the court will not give an order for the restitu-
tion of stolen goods, where the ownership is the subject
of a dispute in the civil courts. See R. v. Macklin, 5
Cox, 216,
Eestitution can be ordered to the owner only. — R. v,
Jones, 14 Cox, 528.
See 1 Hale, 543, 4 Blackstone, 363.
A. Blenkarn took premises at 37 Wood street, and wrote
to the plaintiffs at Belfast ordering goods of them. The
960 PEOCEDURE ACT.
letters were dated 37 Wood street, and signed A. Blenkarn
& Co. in such a way as to look like " A. Blenkiron & Co.''
there being an old established firm of Blenkiron & Sons, at
123 Wood street. One of the plaintiffs knew something of
that firm, and the plaintiffs entered into a correspondence
with Blenkarn, and ultimately supplied the goods ordered,
addressing them to " A. Blenkiron & Co., 37 Wood street."
The fraud having been discovered, Blenkarn was indicted
and convicted for obtaining goods by falsely pretending that
he was Blenkiron & Sons.
Before the conviction the defendant had purchased some
of the goods bona, fide of Blenkarn without notice of the
fraud, and resold them to other persons. The plaintiffs
having brought an action for the conversion of the goods :
Held, that the plaintiffs intended to deal with Blenkiron &
Sons, and therefore there was no contract with Blenkarn :
that the property of the goods never passed from the plain-
tiffs ; and that they were accordingly entitled to recover
in the action. — Lindsay v. Cundy, 2 Q. B. D. 976; 13
Cox, 583.
The plaintiff had stolen money of the defendant, and had
been prosecuted for it, but acquitted on a technical ground.
The plaintiff had, previously to the prosecution, converted
the money into goods, which were now in the possession
of the defendant as being the proceeds of the money stolen
from him by the plaintiff. The plaintiff brought an action
to claim the said goods. Held, that he had no right of
action. — Cattley v. Loundes, 34 W. R. 139.
A thief's money in the hands of the police after his con-
viction is not a debt of the police to the thief, and cannot
be attached under garnishee proceedings. — Bice v. Jar vis,
49 J. P. 264.
Under this section the court can order the restitution
PROCEDURE ACT. 961
of the proceeds of the goods, as well as of the goods them-
selves, if such proceeds are in the hands of the criminal or
of an agent who holds them for him. — R. v. The Jus-
tices, 16 Cox, 143, 196. (Qucere? by the interpretation
clause of the Procedure Act, the word li property " has
not the extensive meaning given by the interpretation
clause of the Larceny Act)
A man was convicted of stealing cattle, which he had
sold since in market overt, and had been resold immediately
also in market overt, the purchasers being in good faith.
Eestitution ordered to the person from whom they had
been stolen.— R. v. Koran, 6 Ir. R. C. L. 293.
M. was indicted for stealing 895 in bank notes, and
acquitted. He applied to have 837 in notes, found on his
person when arrested, returned to him, which the prose-
cutor resisted. The statute of P. E. I., 6 W. 4, c. 22, s. 38,
enacts that " when a prisoner is not convicted, the court
may, if it sees fit, order restitution of the property where
it clearly appears to have been stolen from the owner.
When arrested prisoner had the money sewed up in his
trousers, and among the notes was a 85 note, bank of N. B.,
$5 note, bank of Halifax, and a S5 note, bank of Montreal.
Prisoner said he put the money there to hide it from
the police. Prosecutor had sworn that he had carefully
counted the money before the robbery, and that it included
a $5 bank of X. B. note, and a §5 bank of Halifax note.
Held, that the evidence was not sufficient to identify
the notes as the prosecutor's, and the application must be
granted. — The Queen v. Mclntyre, 2 P. E. I. Rep. 154.
251. When any prisoner has been convicted, either summarily or
otherwise, of any larceny or other offence, including the stealing or
unlawfully obtaining any property, and it appears to the court, by the
evidence, that the prisoner sold such property or part of it to any
person who had no knowledge that it was stolen or unlawfully obtained,
MMM
962 PROCEDURE ACT.
and that money has been taken from the prisoner on his apprehension,
the court may, on the application of such purchaser and on restitu-
tion of the property to its owner, order that out of the money so taken
from the prisoner, a sum not exceeding the amount of the proceeds of
the sale be delivered to such purchaser. — 32-33 V., c. 21, s. 114. 30-
31 V., c. 35, *. 9, Imp.
The English Act does not, expressly, provide by the cor-
responding clause, for cases of obtaining by false pretences.
The section provides for the sale only of the stolen pro-
perty. E. v. Stancliffe, 11 Cox, 318, supra, would not be
affected by it.
See R. v. Roberts, 12 Cox, 574.
INSANE PRISONERS.
252. Whenever it is given in evidence upon the trial of any person
charged with any offence, whether the same is treason, felony or mis-
demeanor, that such person was insane at the time of the commission
of such offence, and such person is acquitted, the jury shall be required
to find, specially, whether such person was insane at the time of the
commission of such offence, and to declare whether he is acquitted by
it on account of such insanity ; and if it finds that such person was
insane at the time of committing such offence, the court before which
such trial is had shall order such person to be kept in strict custody
in such place and in such manner as to the court seems fit, until the
sure of the Lieutenant Governor is known. — 32-33 F., c- 29, s. 99.
253. The Lieutenant Governor of the Province in which the
case arises may, thereupon, make such order for the safe custody of
such person during his pleasure, in such place and in such manner
as to him seems fit.— 32-33 V., c. 29, s. 100.
254. If any person, before the passing of this Act, whether before
or after the first day of July, one thousand eight hundred and sixty-
seven, was acquitted of any such offence on the ground of insanity at
the time of the commission thereof, and has been detained in custody
as a dangerous person by order of the court before which such person
was tried, and still remains in custody, the Lieutenant Governor may
make a like order for the safe custody of such person during pleasure.
— 32-:!3 V., c. 29, s. 101. 40 V., c. 26, s. 7.
255. If any person indicted for any offence is insane, and upon
arraignment is so found by a jury empanelled for that purpose, SO
PROCEDUEE ACT. 963
that such person cannot be tried upon such indictment, or if, upon
the trial of any person so indicted, such person appears to the jury
charged with the indictment to be insane, the court, before which
such person is brought to be arraigned, or is tried as aforesaid, may
direct such finding to be recorded, and thereupon may order such
person to be kept in strict custody until the pleasure of the Lieu-
teuant Governor is known. — 32-33 V., c. 29, s. 102.
256. If any person charged with an offence is brought before any
court to be discharged for want of prosecution, and such person
appears to be insane, the court shall order a jury to be empanelled to
try the sanity of such person ; and if the jury so empanelled finds him
insane, the court shall order such person to be kept in strict custody,
in such place and in such manner as to the court seems fit. until the
pleasure of the Lieutenant Governor is known. — 32-33 V., c.29,s. 103.
2.57. In all cases of insanity so found, the Lieutenant Governor
may make such order for the safe custody, during pleasure, of the
person so found to be insane, in such place and in such manner as to
him seems fit.— 32-33 Y., c 29, s. 104.
258. The Lieutenant Governor, upon such evidence of the insanity
of any person imprisoned for an offence, or imprisoned for safe cus-
tody charged with an offence, or imprisoned for not finding bail for
good behavior or to keep the peace, as the Lieutenant Governor consi-
ders sufficient, may order the removal of such insane person to a
place of safe keeping ; and such person shall remain there, or in such
other place of safe keeping, as the Lieutenant Governor from time to
time orders, until his complete or partial recovery is certified to the
satisfaction of the Lieutenant Governor, who may then order such
insane person back to imprisonment, if then liable thereto, or other-
wise to be discharged. — 36 F., c. 51, s. 1.
It is said in 1 Russ., 29 : " If a man in his sound
memory commits a capital offence, and before arraignment
for it he becomes mad, he ought not to be arraigned for it,
because he is not able to plead to it with that advice and
eaution that he ought. And if, after he has pleaded, the
prisoner become mad, he shall not be tried, as he cannot
make his defence. If, after he is tried and found guilty,
he loses his senses before judgment, judgment shall not be
pronounced, and if after judgment, he becomes of nonsane
964 PROCEDURE ACT,
memory, execution shall be stayed ; for, peradventure, says
the humanity of the English law, had the prisoner been of
sound memory, he might have alleged something in stay of
judgment or execution. And, by the common law, if it be
doubtful, whether a criminal who at his trial is, in appear-
ance, a lunatic, be such in truth or not, the fact shall be
investigated. And it appears that it may be tried by the
jury, who are charged to try the indictment, or by an in-
quest of office to be returned by the sheriff of the county
wherein the court sits, or, being a collateral issue, the fact
may be pleaded and replied to ore tenus, and a venire
awarded returnable instanter, in the nature of an inquest
of office. And if it be found that the party only feigns
himself mad, and he refuses to answer or plead, he would
formerly have been dealt with as one who stood mute, but
now a plea of not guilty may be entered under the 7-8
Geo. IV., c. 28, sec. 2 ;" sec. 145 of the Procedure Act.
The above sections of the Procedure Act, on the proce-
dure in the case of insane prisoners, are taken from the 39-
40 Geo. III., c. 94, and the 3-4 V., c. 54.
Where, on a prisoner being brought up to plead, his
counsel states that he is insane, and a jury is sworn to try
whether he is so or not, the proper course is for the pris-
oner's counsel to begin the evidence on this issue, and
prove the insanity, as the sanity is always presumed. — B.
v. Turton, 6 Cox, 385.
It has been seen, ante, under sec. 163, that no peremp-
tory challenges are allowed on collateral issues.
The jury may judge of the sanity or insanity of the pris-
oner from his demeanor in their presence without any
evidence.— R v. Goode, 7 A. & R, 536.
The jury are sworn as follows : — kl You shall diligently
inquire and true presentment make for and on behalf of
PROCEDURE ACT. 965
our Sovereign Lady the Queen, whether A. B., the prisoner,
be insane or not, and a true verdict give according to the
best of your understanding ; so help you Gud.''
If a prisoner has not, at the time of his trial, from the
defect of his faculties, sufficient intelligence to understand
the nature of the proceedings against him, the jury ought
to find that he is not sane, and upon such finding, he may
be ordered to be kept in custody. — R. v. Dyson, 7 C. <fc P.
305.
A grand jury have no right to ignore a bill against any
person on account of his insanity, either when the offence
was committed or at the time of preferring the bill,
however clearly shown. — R. v. Hodges, 8 C. & P. 195 ;
1 Russ. 32 ; Dickinson's Quarter Sessions, 476.
If at any stage of the trial it is found that the prisoner
has not sufficient intelligence to understand the nature
of the proceedings, the jury should be discharged and the
prisoner detained under the above section 255. — R. v.
Berry, 13 Cox, 189.
CROWN CASES RESERVED.
259. Every court before which any person is convicted on indict-
ment of any treason, felony or misdemeanor, and every judge within
the meaning of " The Speedy Trials Act" trying any person under
Buch Act, may, in its or his discretion, reserve any question of law
which arises on the trial, for the consideration of the justices of the
court for crown cases reserved, and thereupon may respite execution
of the judgment on such conviction, or postpone the judgment, until
such question has been considered and decided ; and in either case the
court before which the person is convicted may, in its discretion. com-
mit the person convicted to prison, or take a recognizance of bail,
with one or two sufficient sureties, in such sum as such court thinks
lit, conditioned for his appearance at such time as such court directs,
to receive judgment or to render himself in execution, as the case may
be— 38 V., c. 45, s. 1. 46 V., c 10, s. 5, part. 49 V., c. 47, s. 1.
a s. u. a, c. ii2, *. i. a s. l. a, c 11, s. 57. r. s. n. s.
3rd. S, c. 171, *. 99, part. 1 R. & xY. £., c. 159, «. 22, pxrt.
966 PROCEDTJKE ACT.
260. The judge or other person presiding at the court, before which
the person is convicted, shall thereupon state in a case, to be signed by
such judge or other person, any question of law so reserved, wiih the
special circumstances upon which the same arose; and such case
shall be transmitted by such judge, or other person, to the court for
Crown cases reserved, on or before the last day of the first week of
the term of such court next after the time when such trial was had.
— C. S. U. C, c 112, s. 2. C. S. L. a, c 77, s. 58, part. R. 8. N. S.
(3rd S.), c. 171, s. 100. 1 R. S. N. B., c. 159, s. 23, part.
261. The justices of the court for Crown cases reserved, to which
the case is transmitted, shall hear and finally determine such question,
and reverse, affirm or amend any judgment given on the trial wherein
such question arose, or shall avoid such judgment or order an entry
to be made on the record, that in the judgment of such justices the
person convicted ought not to have been convicted, or shall arrest the
judgment, or if no judgment has been given, shall order judgment to
be given thereon at some future session of the court before which the
person was convicted, or shall make such other order as justice
requires —C. S. U. C, c. 112, s. 3. C. S. L. C, c. 77, s. 58, part.
R. S. N. S. (3rd S.% c. 171, s. 101. 1 R. S. N. B., c. 159, s. 23, part.
262. The judgment and order of such justices shall be certified
under the hand of the chief justice, president or senior judge of the
court for Crown cases reserved, to the clerk of the court before which
the person was convicted, who shall enter the same on the original
record in proper form, and a certificate of such entry, under the hand
of such clerk, in the form as near as may be, or to the effect men-
tioned in the third schedule to this Act, with the necessary alterations
to adapt it to the circumstances of the case, shall be delivered or trans-
mitted by him to the sheriff or gaoler in whose custody the person
convicted is ; and the said certificate shall be sufficient warrant to
such sheriff or gaoler, and all other persons, for the execution of the
judgment, as so certified to have been affirmed or amended, and exe-
cution shall thereupon be carried out on such judgment, or if the judg-
ment has been reversed, avoided or arrested, the person convicted
shall be discharged from further imprisonment, and the court before
which the person was convicted shall, at its next session, vacate the
recognizance of bail, if any ; or if the court before which the person
was convicted is directed to give judgment, such court shall proceed to
give judgment at the next session thereof. — 46 V., c. 10, s. 5, part,
a S. U. a, c. 112, s. 4. C. S. L. a, c. 77, *. 59. R. S. N. S. (3rd s.
c. 171, s. 102. 1 R. S. N. B., c 159, s. 23, part.
PROCEDURE ACT. 967
263. The judgment of the justices of the court for Crown cases
reserved shall be delivered in open court, after hearing coun-el or the
parties, in case the prosecutor or person convicted thinks it tit that the
case should be argued, in like manner as other judgments of such
court are delivered, but no notice, appearance'or other form of proce-
dure, except such ouly as such justices in such case see fit to direct,
shall be requisite.— C. & U. C, c. 112, s. 5 ; C. S- L. C, c. 77, * 60 ;
R. S. N. S. (3rd S.)> c.171, s. 103.
26-4. The justices of the court for Crown cases reserved, when
any question has been so reserved for their consideration, may
cause the case or certificate to be sect back for amendment, and
thereupon the same shall be amended accordingly, and judgment
may be delivered after it has been amende 1. C. S. U. C, c. 112, s.
6 ; C. S. L. C, c. 77, s. 61 ; 1 R. S. N. B., c. 159, s. 24.
See, s. 2, interpretation clause, p. 640, ante, for meaning
of the words Court of Croivn cases reserved.
The Imperial corresponding statute is 11-12 V., c. 78.
The statute gives no jurisdiction to the court of crown
cases reserved to hear a case reserved on a judgment on a
demurrer. There must have been a trial and a convic-
tion to give jurisdiction to this court. — R. v. Faderman
Den. 565 ; R v. Paxton, 2 L. C. L. J. 162.
If a prisoner pleads guilty to the charge alleged in the
indictment, no question of law can be reserved, as none
can be said to have arisen on the trial. — R. v. Clark, 10
Cox, 338.
In R. v. Daoust, 9 L. C. J. 85, the defendant having
been found guilty of felony, a motion for a new trial had
been granted by Mr. Justice Mondelet. At the next term
of the court, the prosecutor moved to fix a day for this
new trial before Mr. Justice Aylwin, who then reserved
for the court of crown cases reserved the question whether
a second trial could be had in a case of felony. The Court
I of Queen's Bench held that the question was properly
reserved, and that the statute gave them jurisdiction to
968 PROCEDURE ACT.
decide it. — 10 L. C. J. 221. It may be doubted whether in
this case they had jurisdiction before the second trial and
conviction, if a second conviction there had been.
A question raised in the court below by a motion in
arrest of judgment is a question arising on the trial, and
properly reserved. — R. v. Martin, 1 Den. 398 ; 3 Cox,
447 ; R. v. Carr, 26 L. C. J. 61 ; R. v. Deery, 26 L. C
J. 129 ; R. v. Corcoran, 26 U. C. C. P. 134.
The statute gives jurisdiction to the court of crown cases
reserved to take cognizance of defects apparent on the
face of the record, when questions upon them have been
reserved at the trial. — R. v. Webb, 1 Den. 338.
What a jury may say in recommending a prisoner to
mercy is not a matter upon which a case should be
reserved. When the jury say guilty, there is an end
to the matter ; that is the verdict, and a recommendation
to mercy is no part of the verdict. — R. v. Trebilcoek,
Dears. & B. 453.
On a trial for murder, the name of A. a juror on the
panel was called; B. another juror on the same panel
appeared by mistake, answered to the name of A. and
was sworn as a juror. The prisoner was convicted and
sentenced to death. The next day, this irregularity in the
jury was discovered, when the judge, being informed of it,
reserved the question as to the effect of the mistake on
the trial. Held, by eight judges, against six, that the
conviction must stand. — R. v. Mellor, Dears. & B. 468.
The judges were divided on the question whether the
court of crown cases reserved had jurisdiction over the
case.
The court expects cases reserved to be submitted in a
complete form, and will ordinarily refuse to send back a
case for amendment. — R. v. Holloway, 1 Den. 370.
PROCEDURE ACT. 969
If a counsel should think that any material point raised
at the trial has been omitted in the case, it would be pro-
per for him to communicate with the judge who reserved
the case, and suggest any amendment that in his judgment
may be necessary. — B. v. Smith, Temple & Mews' Crim.
App. Cases, 214. Where a case reserved does not, in the
opinion of the counsel, fairly raise all the points that were
in issue, the proper course is to apply to the judge re-
serving to amend it. — B. v. Smith, 1 Den. 510. See R.
v. Winsor, 10 Cox, 276.
The court will not send a case back for amendment on
the mere application of counsel, but will do so if on the
argument it appears that it is imperfectly stated. — R. v.
Hilton, Bell, C. C. 20. Where a case reserved has been
re- stated by order of the court, an application, supported by
affidavit, to have it again re-stated will be refused. This
court has no jurisdiction to interfere compulsorily with
the judge's exercise of his discretion. — R. v. Studd, 10
Cox, 258.
The court must deal with the case as it is stated, and
upon the evidence returned by the judge. — JR. v. Bruin-
mitt, L. & C. 9.
By the express words of the statute, the court of crown
cases reserved has its jurisdiction limited to the question
of law reserved, and mentioned in the case sent up ; it has
no right to adjudicate on any other question. — B. v. Tyree,
L. B., 1 C. C. 177; R. v. Blakemore, 2 Den. 410; B.
v. Smith, Temple and Mews' Or. App. Cases 214.
So, in B. v. Overton, C. & M. 655, on a crown case
reserved, it was held that the judgos will not allow the
prisoner's counsel to argue objections that are apparent on
the face of the indictment, unless they were reserved by
the judge, but will leave the prisoner to his writ of error.
970
PROCEDURE ACT.
The rule that a jury should not convict on the unsup-.
ported evidence of an accomplice is a rule of practice only,
and not a rule of law, and questions of law only can be
reserved. — R. v. Stubbs, Dears. 555. Contra, R. v. Smith,
38 U. 0. Q. B. 218. But see later case of R. v. Andrews,
12 O.R. 184.
The court of crown cases reserved cannot amend the
indictment.— R. v. Garland, 11 Cox, 224. Where an
amendment, without which the indictment was bad, had
been improperly made at the trial, after verdict, this court
ordered the record to be restored to its original state, and a
verdict of not guilty to be entered. — R. v. Larhin, Dears.
365.
On the argument of a case reserved, the counsel for the
defendant must begin. — R. v. Gate Fulford, Dears. & B.
74.
Post, under the sub-title venire de novo, s. 268,
will be found the cases where the court of crown cases
reserved, ordered or refused a venire de novo.
Sec. 266, post, enacts that no writ of error shall be al-
lowed, unless it is founded on some question of law which
could not have been reserved, or which the judge presiding
at the trial refused to reserve. So that where any party
wishes to save his recourse to a writ of error on a ques-
tion that can be reserved, the proper course is to put in
writing his demand to have it reserved, so that the judge's
refusal, when it occurs, should appear on the record.
On a motion for a new trial from a conviction for per-
jury : Held, that the trial (under sec. 259 of the Procedure
Act) is not terminated until sentence is rendered, and a
" question which has arisen on the trial " (which arises on
the trial) does not necessarily mean a question that was
raised at the trial, but extends to one that took its rise at
PROCEDURE ACT. 971
the trial, and therefore a point not raised by the defence
may be reserved by the court. — R. v. Bain, 23 L. G. J.
327.
Where no new trial is asked for in a reserved case, the
court will not order a new trial. — R. v. Hinds, 24 L. G.
J. 116. (Qucere 1)
So reserved case can be had, where no conviction. — R.
v. Lalanne, 3 L. N. 16.
• It is not necessary that the prisoner be present at the
hearing of a reserved case. — R. v Glass, 21 L. C. J. 245.
See re Sproule, 12 S. C. R. 140.
Where the prisoner has been put on his trial on an
indictment containing six counts, charging him with shoot-
ing with intent to murder, and was found guilty on the
first count, which verdict was afterwards set aside on a
reserved case for insufficiency of that first count : Held,
that he could not be tried again on the other counts, as
they all referred to the same act of shooting; prisoner
discharged on plea of autrefois acquit. — jR. v. Bulmer,
5 L. N. 92.
Held, that when a case reserved for the consideration
of the full court does not contain a question which, in
the opinion of the full court, it is essential to decide in
connection with such case, it maybe sent back for amend-
ment.— R. v. Provost, 1 M. L. R. Q. B. 473.
A reserved case may be amended at the request of the
defendant during the argument thereon before the full
court, by adding the evidence taken at the trial. — R. v.
Ross, 1 M. L. R. Q. B. 227.
If illegal evidence has been allowed to go to the jury,
though without objection from the prisoner, the verdict
must be quashed, if that evidence might have affected the
verdict, though apart from it, there is sufficient evidence
972 PROCEDURE ACT.
to support the verdict. The law on this in criminal cases
is what it was in civil cases before the Judicature Act.
The case of R. v. Ball, R. & R. 132, reviewed. R. v.
Gibson, 16 Cox, 181.
Challenging the array of the jury panel is not a matter
which can be reserved under C. S. U. C, c. 112. — R. v.
O'Rourke, 32 U. G. C. P. 388.
But otherwise, if the question is one relating to the
proper constitution of the petit jury. — R. v. Kerr, 26 U.
C. C. P. 214.
Quaere, whether, when such a question has been re-
served by a judge at the trial, it can afterwards be made
the subject of a writ of error. — R. v. O'Rourke, 32 U.
C.aP. 388.
The decision of the judge in directing certain jurors
to stand aside is a question of law arising at the trial which
he can reserve. — R. v. Patteson, 36 U. C. Q. B. 129. But
see R. v. Smith, 38 U. C. Q. B. 218. See R. v. Mellor,
Dears. & B. 468, cited ante.
A police magistrate cannot reserve a case for the opinion
of a superior court, under C. S. U. C, c. 112, as he
is not within the terms of that act. — R. v. Richardson,
8 0. R. 651.
Now, under sec. 259 of the Procedure Act, every judge
acting under the Speedy Trials Act can reserve a case.
WRITS OF ERROR.
265. Writs of error shall run in the name of the Queen, and shall
be tested and returnable according to the practice of the court grant-
ing such writ, and shall operate a stay of execution of the judgment
of the court below.— C. S. O. C, c. 113, s. 16, part. C. S. L. C, c.
77, s, 56, part.
As amended by c. 50, 50-51 V.
266. No writ of error shall be allowed in any criminal case, unless
PROCEDURE ACT. 973
it is founded on some question of law which could not have bee
reserved, or which the judge presiding at the trial refused to reserve
for the consideration of the court having jurisdiction in such cases. —
32-33 V., c. 29, s. 80, part.
267. Whenever in a criminal case any writ of erior has been
brought upon any judgment or any indictment, information, present-
ment or inquisition, and the court of error reverses the judgment, the
court of error may either pronounce the proper judgment, or remit the
record to the court below, in order that such court may pronounce
the proper judgment upon such indictment, information, presentment
or inquisition.— C. S. TJ.C, c. 113,*. 17. C. & L. C, c. 77, s. 62. 1
i?. S. X. B., c. 160, s. I. 11-12 V. c.78, s.b, Imp.
Writ of error. — When once judgment is given, the
writ of error is the only remedy for any defect in the pro-
ceedings ; 1 Chit. 747 ; if the judge presiding at the trial
has not reserved a case, as shown under the last sub-title.
By the statute, the judgment on a crown case reserved is
final, and no error lies from that judgment, or on the same
grounds, and by sec. 266 of the Procedure Act, " no writ
of error shall be allowed in any criminal case, unless it be
founded on some question of law which could not have
been reserved, or which the judge presiding at the trial
refused to reserve for the consideration of the court having
jurisdiction in such cases." See It. v. Faderman, 1 Den.
565.
The " questions of law which could not have been re-
served by the judge presiding at the trial " in that clause
have no meaning, for all questions of law can be reserved.
In R. v. Mason, 22 U. C. G. P. 246, Gwynne, J., said,
citing sects. 32 and 80 of the Procedure Act then in force
" Our law as to what may or may not be objected on
error essentially differs from that of England. "
A writ of error in England in the proper remedy after
judgment for every defect in substance in an indictment,
where a question of law has not been reserved, for irregu-
974 PROCEDURE ACT.
larity in awarding the jury process, for irregularity in the
verdict or judgment, for any manifest error on the face of
the record, for a challenge wrongly disallowed, or for an
error in the sentence, if the sentence is not authorized by
law ; also, in capital cases, if the allocutus, or demand on
the defendant why the court should not proceed to judg-
ment against him, has been omitted. — Archbold, 173;
Chit. 699, 747 ; Whelan v. B., 28 U. C. Q. B. 2 ; 8th Cr.
L. Corn. Bep. 170 ; 3 Burn, 60 ; 5 Burn, 359 j 4 Black-
stone, 375.
The criminal law commissioners, loc. tit., say that the
matters apparent upon the face of the record, which are suffi-
cient to falsify or reverse a judgment upon a writ of error,
are the same as are sufficient to arrest or bar a judgment,
and also any material defect in the judgment itself, as a
judgment which sentences a party to suffer a punishment
not warranted by law. In this last case the writ of error
may issue at the instance of the crown. But although it
is issued at the instance of the crown, the court is not lim-
ited to the errors assigned; but the whole record is
before the court, and the prisoner has the right to the bene-
fit of all substantial defects in it, and the conviction will
be quashed, if such a defect exists. — B. v. Fox, 10 Cox,
502.
No writ of error, either in felony or misdemeanor, can
issue without the fiat of the attorney general, or solicitor
general. This fiat cannot be signed by the crown prose-
cutor acting for the attorney general. The court cannot
control the exercise of the discretion left to the attorney
general on this subject. — Archbold, 188 ; Danlop v. B.,
11 L. C. J. 186, 271 ; Notman v. B., 13 L. C. J. 255.
By section 103, p. 708, of the Procedure Act, ante, the
writ of error need not be on parchment. The original writ
PROCEDURE ACT. 975
itself is served and delivered to the clerk of the court, who
has the custody of the indictment, and who then makes up
the record and makes the return to the court. This return
must be signed by the judge. See Archbold for forms of
fiat, praecipe, writ, return, assignment of error, etc.
If the whole record be not certified, or not truly certi-
fied, the plaintiff in error may allege a diminution of the
record, showing I y affidavits that part of the record has
been omitted, and a certiorari will be awarded. — Arch-
bold, 192 ; Ducal v. E., 14 L. C. E. 52.
On a charge of felony, the party suing out the writ must
appear in person to assign errors ; if he is in custody, he
must be brought up by habeas corpus, obtained on affi-
davit. The expenses of the writ and the gaoler's travelling
charges are borne by him. In misdemeanors, it is not
necessary that the plaintiff in error should assign error in
person, or be present when the case is heard or judgment
given. — Sth Crim. L. Com. Eep. 172; Archbold, 192.
In Murray v. E., 3 D. & L. 100, the court, on special
reasons, did not insist, in a case of felony, on the presence
of the plaintiff in error.
No fact can be assigned for error which contradicts the
record.— -ft. v. Carlile, 2 B. & A. 362.
Formerly, if the court below had pronounced an erro-
neous judgment, the court of error had no power at com-
mon law to pronounce the proper judgment, or remit the
record to the court below, but were bound to reverse the
judgment and discharge the defendant. — Bourne v. E., 7
A. <L- E. 58. But now, by sec. 267, ante, the court of error
is authorized to pronounce the proper judgment, or to remit
the record to the court below, in order that such court may
pronoun e he proper judgment.
A judgment reversed on a writ of error for a technical
976 PBOCEDUKE ACT.
error in the proceedings is no bar to a second indictment.—
R. v. Drury, 3 C & K. 193; 1 Chit. 756 4 Blackstone,
393.
In Ramsay v. R., 11 Z. 0. J. 158, the Court of Queen's
bench, held that no writ of error lay on a judgment of a
criminal court on a rule for a contempt of court.
In capital felonies the prisoner is remanded and kept in
custody during the pendency of a writ of error. — Whelan
v. R., 28 U. C. Q. B. 2.
In Spelman v. R., 13 L. C. J. 154, and 14 L. C. J. 281,
the prisoner was admitted to bail on habeas corpus, dur-
ing the pendency of a writ of error.
But at common law this is not allowed, and in jR. v.
Wilkes, 4 Burr. 2543, Lord Mansfield said that he knew
of no case where a person convicted of misdemeanor had
been bailed without the consent of the prosecutor. Now,
in England, by statute, upon the issue of a writ of error,
a defendant, in misdemeanors, can be bailed ; 8-9 V., c. 68,
and 16-17 V., c. 32. But, without any statute law to that
effect, in no case can a prisoner in custody, in execution of
a judgment, be admitted to bail, even when a writ of error
has issued. Before the above statutes, in England, it was
said (Appendix to 8th Bep. Cr. L. Com) : " In the present
state of the law, a writ of error in a criminal case does not
suspend judgment, and the party convicted is subject to
receive sentence, and to be consigned to punishment."
Though see art. 32, p. 173, 8th Cr. L. Com. Bep. as to the
case where the judgment has not been wholly or partially
carried into effect.
See, ante, under s. 146, Greaves' MSS. note.
On the hearing of a writ of error, the plaintiff in error
must be personally before the court, and, if he is confined,
should be brought up on habeas corpus. — Laurent v. R., 1
Q. B. R. 302.
PROCEDURE ACT. 977
On a writ of error being maintained and a conviction set
aside for irregularities in the indictment, the court held
that whether they would remand or liberatethe prisoner was
discretionary. — Kelly v. R., 3 Stephens' Dig,, Quebec, 218.
The court cannot look beyond the record for what took
place at the trial, and affidavits purporting to contradict
the record are inadmissible. The notes taken by the judge
at the trial do not form part of the record. — Dougall v. R.
22 L. C. J. 133 ; in re Sproule, 12 S. C. R. 140 ; R. v.
Winsor, 10 Cox, 276; R. v. Carlile, ubi supra.
Where it was alleged on a writ of error that, in the course
of the trial, which was for murder, and in which the prisoner
was found guilty, a medical witness was ordered to make an
analysis for the information of the jury, and that he had done
so and made a report, but that the report so made was not
placed before the jury, as it ought to have been, and that
thereby the prisoner was deprived of the advantage of
important evidence in her favor : Held, that as the report
could not have been submitted to the jury except as part of
the evidence, and as neither the evidence nor the ruling of
the judge in relation to it could be brought under the
consideration of the court of error by means of a writ of
error, that the plaintiff in error had no right to have the
record amended so as to place before the court the said
report ; nor could the plaintiff cause the said record to be
amended so as to show whether the judge who presided
at the trial wrote the notes of evidence himself or caused
them to be written by a clerk ; nor as to show what pre-
cautions were taken for the safe keeping of the jury
while deliberating upon their verdict. — Duval v. R., 14
L. C. R. 52.
Whether the police court is a court of justice within 32-
33 V., c. 21, s. 18, or not, is a question of law which may
NNN
978 PROCEDURE ACT.
be reserved by the judge at the trial under C. S. U. C, c.
112, s. 1; and where it does not appear by the record in
error that the judge refused to reserve such question it
cannot be considered upon a writ of error. — R. v. Mason
22 U. C. C. P. 246.
The judge may discharge the jury, after they are sworn, in
consequence of the disappearance of a witness for the crown.
The prisoner may then be tried again, and a court of error
cannot review the judge's decision. — Jones v. R. 3 L. N.
309.
Error only lies for matter of record. The charge of the
judge is not matter of record. — Defoy v. R., Ramsay's
App. Cas. 200.
In Quebec, the judge who presided at the trial cannot
sit in the court of error. — R. v. Dougall, Ramsay's App.
Cas. 200.
The judgment of a court of record cannot be inquired of
on habeas corpus, Exp. O'Kane, Ramsay's App. Cas. 188.
And the judgment of a superior court of law cannot be
interfered with on habeas corpus, even if the sentence is
illegal. Exp. McGrath, Ramsay's App. Cas. 188. The
writ of error is the only remedy, but otherwise, if it is the
sentence of an inferior tribunal. Exp. Burns, Ramsay's
App. Cas. 188.
See in re Sproule, 12 S. C. R. 140, and cases there cited.
—Also R. v.. Mount, L. R. 6 P. C. 283.
APPEALS AND NEW TRIALS-
1. Section two hundred and sixty-eight of "The Criminal Proce-
dure Act " is hereby repealed, and the following substituted therefor. —
50-51 V., c 50.
268- "Any person convicted of any indictable offence, or whose
conviction has been affirmed before any court of oyer and terminer
cr gad delivery or before the Court of Queen's Bench in the Province
PROCEDURE ACT. 979
of Quebec, on its crown side, or before any otber superior court having
criminal jurisdiction, whose conviction has been affirmed by any court
of last resort, or, in the Province of Quebec, by the Court of
Queen's Bench on its appeal side, may appeal to the supreme court
against the affirmance of such conviction; and the supreme court
shall make such ru e or order therein, either in affirmance of the
conviction or for granting a new trial, or otherwise, or for granting
or refusing such application, as the justice of the case requires, and
shall make all other necessary rules and orders for carrying such
rule or order into effect: Provided that no such appeal shall be allowed
if the court affirming the conviction is unanimous, nor unless notice
of appeal in writing has been served on the Attorney General for the
proper Province, witbin fifteen days after such affirmance :
" 2. Unless such appeal is brought on for hearing by the appellant
at the session of the supreme court during which such affirmance
takes place, or the session next thereafter, if the said court is not then
in session, the appeal shall be held to have been abandoned, unless
otherwise ordered by the supreme court :
■ 3. The judgment of the supreme court shall, in all cases, be final
and conclusive :
"4. Except as hereinbefore provided, a new trial shall not be
granted in any criminal case, unless the conviction is declared bad
for a cause which makes the former trial a nullity, so that there
was no lawful trial in the case ; but a new trial may be granted in
ca-es of misdemeanor in which, by law, new trials may now be
granted :
"5. Notwithstanding any royal prerogative, or anything contained
in " The Interpretation Act" or in " The Supreme and Exchequer
Courts Act" no appeal shall be brought in any criminal case from
any judgment or order of any court in Canada to any court of appeal
established by the Parliament of Great Britain and Ireland, by which
appeals or petitions to Her Majesty in Council may be ordered to be
heard."
2. Sections sixty-eight and sixty-nine of " The Supreme and Exche-
quer Courts Act" are hereby repealed.
3. The foregoing provisions of this Act shall not come into force
until a day to be named by the Governor General, by his proclamation
to that effect.
Per Ritchie, C. J. — Only the grounds upon which the
court of crown cases reserved are not unanimous are
980 PROCEDURE ACT.
open to the appellant on a criminal case before the supreme
court. — R. v. Cunningham, Cassels' Dig. 107.
Since the passing of 32-33 V., c. 29, s. 80, repealing
so much of c. 77 of Cons. Stat. L. C, as would authorize
any court of the Province of Quebec to order or grant a
new trial in any criminal case ; and of 32-33 V., c. 36,
repealing s. 63 of c. 77, Cons. Stat. L. C, the Court of
Queen's Bench of the Province of Quebec has no power
to grant a new trial. — LaliherU x . R., 1 S. C. R. 117.
But a venire de novo could always be granted.
A new trial will not be granted to the crown in a crim-
inal case ; neither has the crown an appeal to the supreme
court of Canada from a judgment quashing a conviction.
- The Queen v. Tower, 4PJ5. (N. B.) 168.
A new trial may be ordered on a reserved case, in
misdemeanors, where it appears to the court on the
evidence that an injustice may have been done to the
defendant.— 12. v. Ross, 1 M. L. R. Q. B. 227, following
R. v. Bain, 23 L. C. J. 327.
In misdemeanors there is no doubt that the superior
courts may grant a new trial, in order to fill the purpose of
substantial justice. — 1 Chit. 654. A new trial may be
allowed on the application of a defendant, after conviction
on the ground that the prosecutor has omitted to give
notice of trial in the cases where it ought to have been
given, or that the verdict is contrary to evidence or the
directions of the judge, or for the improper reception or
rejection of evidence, or other mistake or misdirection on
the part of the judge, or misconduct on the part of the
jury, or where for any other cause it shall appear to the
court that a new trial is essential to justice. — Sth Cr L.
Com. Report, p. 159. If the defendant has been acquitted,
the prosecutor is, in general, not entitled to a new trial. — R»
PROCEDURE ACT. 981
v. Silvester, 1 Wils. 298; R. v. Reynett, 6 East, 315 ; R.
v. Wandsworth, 1 5. v. Aid. 63; 12. v. Duncan, 14 Coa;,
571, though it seems admitted that where the defendant
shall have kept back any of the prosecutor's witnesses, or
obtained an acquittal by fraudulent means or practice, a
new trial may be granted in the case of an acquittal. —
8th Cr. L. Corn. Report, 161, and authorities there cited.
A motion for a new trial is generally not received after the
expiration of the first four days of the term next after
trial or after sentence. The offender, or if more than one,
all the offenders who have been convicted, must be
present in court, when the motion is made for a new trial. —
R. v. Caudivell, Note a, 2 Den. 372, 1 Chit. 658 ; unless
some special ground be laid for dispensing with the rule. —
R. v. Parkinson^ 2 Den. 459. See R. v. Fraser, 14 L. C.
J. 252. Where one or more of several defendants have
been convicted, and another or others acquitted, a new trial
may be granted as to the former only. — 1 Chit. 659 ; R. v.
Teal, 11 East, 307. As a general rule, no motion for a
new trial is received after a motion in arrest of judgment ;
though the court may, in its discretion, receive it. — 1
Chit. 658 ; R. v. Rowlands, 2 Den. 364.
Mr. Justice Aylvvin, in R.v. Bruce, 10 L. C. R. 117, held
that in Lower Canada, where the court is held before one
judge and never before more than two, the motion for a new
trial in cases of supposed misdirection becomes impractic-
able. And in R. v. Dougall (indictment for libel, Queen's
Bench, Montreal, September, 1874), Mr. Justice Kamsay
seemed to be of opinion that he had no jurisdiction to
hear and determine a motion for a new trial ; but these
cases are not now law.
It has been said that no new trial can be granted in a
case of felony. In R. v. Scaife, et al., 2 Den. 281, how-
982 PROCEDURE ACT.
ever, a new trial was granted, in such a case, but it was
since said by Sir J. T. Coleridge, in B. v. Bertrand, 10
Cox, 618, that the attention of the court, in B. v. Scaife,
had not been directed to this question, and that the deci-
sion therein, so far, has taken no root in our law and borne
no fruit in our practice. In this case of B. v. Bertrand,
the prisoner, in New South Wales, having been found
guilty of murder and sentenced to death, moved for a new
trial before the supreme court, on the ground of alleged
irregularities on his trial. The supreme court granted
this application, and setting aside the verdict, granted a
new trial. The privy council reversed this judgment, and
ordered that the verdict and sentence against the prisoner,
should stand, on the express ground that a new trial cannot
be granted in a case of felony. See B. v. Duncan, 14
Cox, 571.
The same doctrine was upheld by the privy council,
upon another appeal from New South Wales in B. v.
Murphy, 11 Cox, 372. In delivering the judgment in
this case, Sir William Erie said that the cases in which
a verdict upon a charge of felony has been held to be a
nullity and a venire facias de novo awarded, have been
cases of defect of jurisdiction in respect of time, place or
person, or cases of verdicts so insufficiently expressed or so
ambiguous that a judgment could not be founded thereon,
but that there is no valid authority for holding a verdict,
of conviction or acquittal in a case of felony, delivered
before a competent tribunal in due form, to be a nullity by
reason of some conduct on the part of the jury considered
unsatisfactory by the court, and if irregularity occurs in
the conduct of a trial not constituting a ground for treating
the verdict as a nullity, the remedy to prevent a failure of
justice is by application to the authority with whom rests
PROCEDURE ACT. 983
the discretion either of executing the law or commuting
the sentence. But see Greaves' remarks, post, on these
cases.
Venire facias de novo. — The "material difference " says
Chitty, Cr. L. 654, "between a new trial and a v-
facias de novo, is that the latter is only grantable where
some mistake is apparent on the record, but the former
may be granted on the ground of improper direction, false
evidence, misconduct of jurors, and a variety of other
causes which never appear on the face of the proceedings."
Manning, Serjt., in a note to Gould v. Oliver, 2 M. <Ss
G., 238, says : " The distinction between an award of a
venire de novo and a rule for a new trial appears to be
that the former is always founded upon some irregularity
or miscarriage apparent upon the face of the record, whilst
the latter is an interference by the court in the discre-
tionary exercise of a species of equitable jurisdiction, for
the purpose of relieving a party against a latent grievance.
After a rule for a new trial and a new trial had thereon
the record is in the same state as if no trial, except the
last, had taken place, whereas, upon a venire de novo, the
fact of the first trial, and the circumstances under which
that trial became nugatory or abortive, and which rendered
a second trial a matter not of discretion, but of right, neces-
sarily appear on the record."
As to when a writ of venire facias de novo may issue
the Cr. Law Com. in their eighth report, p. 160, say : " A
writ of venire facias de novo may be awarded by the Court
of Queen's Bench, where the jury have been improperly cho-
sen, or irregularly returned, or a challenge has been impro-
perly disallowed, or where, by reason of misconduct on the
part of the jury, or some uncertainty or ambiguity or other
imperfection in their verdict, or of any other irregularity
984 PROCEDURE ACT.
or defect in the proceedings or trial, appearing on the
record, the proper effect of the first venire has been frus-
trated or the verdict become void in law."
The record at the quarter sessions, after stating that the
defendants were indicted for stealing oats, to which they
pleaded not guilty, and a verdict of guilty thereon was
given, added, " that because it appeared to the justices, that,
after the jury had retired, one of them had separated from
the other jurors, and conversed respecting his verdict with
a stranger, it was considered that the verdict was bad, and
it was therefore quashed, and a venire de novo awarded to
the next sessions ; " and it then proceeded to set out the
appearance of the parties at such sessions, and the trial
and conviction by the second jury, "whereupon, all and
singular the premises being seen and considered, judgment
was given.'' Held, on a writ of error, that such judgment
was right.— R. v. Fowler, 4 B. & Aid. 273.
In Campbell v. R., 2 Cox, 463 ; Gray v. R., 11 C. &
Fin. 427; R. v. Yeadon, L. & C. 81 ; and R. v. Winsor,
10 Cox, 276, the award of a venire de novo, in felony as
well as in misdemeanor, was held legal and right, in all
cases where, from any reason, the first trial has proved
aboTtive.
In the case of R. v. Murphy, 11 Cox, 372, cited, ante,
the judgment reversed by the privy council was a judg-
ment granting a venire de novo in a case of felony, but their
lordships considered the application was, in substance, for
a new trial, and an attempt, by the exercise of a discre-
tion, to grant a new trial in a case of felony, on the ground
that the conviction was considered to be unsatisfactory by
reason of some irregularity in the trial. The privy council,
in Levinger v. R., 11 Cox, 613, quashed a conviction in
a case of felony, and awarded a venire de novo, on the
PROCEDURE ACT. 985
ground that the prisoner had been improperly refused the
challenge of a juror. See also R. v. Martin, 12 Cox, 204.
If the conviction is set aside from some cause not depen-
ding upon the merits of the case, and in any case where
the former trial has been a nullity or a mis-trial, a venire
de novo ought to be awarded. If the circumstances of
the case are such that the prisoner could not plead autre-
fois convict to a second indictment for the same offence,
there is no reason why a venire de novo should not be
awarded on the first indictment, provided, of course, that it
has not been quashed, or the conviction set aside on the
ground of irregularities or illegality in the said first indict-
ment. In R. v. Yeadon, L. & C. 81, the court of crown
cases reserved, holding that there had been a mis-trial,
awarded a venire de novo. See also Levinger v. 12., cited
supra.
In R. v. Mellor, Dears. & B. 468, a juror by mistake
answered to the name of another, and was sworn. The
fact was discovered after the trial was over, the prisoner
having been found guilty and sentenced to death. Upon
a case reserved, Crowder, Willes and Byles, J. J., were of
opinion that there had been no mistrial ; Pollock, Erie,
Williams, Crompton and Channell, J. J., were of opinion
that, as the court of crown cases reserved, they had not
the right to award a venire de novo ; Campbell, G. J.,
Cockburn, C. J., Wightman and Watson, J. J., were of
opinion that there had been a mis-trial, and that, as the
court of crown cases reserved, they had the power, under the
statute, to order a venire de novo ; Coleridge and Martin,
J. J., were also of opinion that the first trial was a nullity,
and that the entry on the record should be that there hal
been a mis-trial, that the conviction was wrong and null,
and that the prisoner must be again tried for the same
986 PROCEDURE ACT.
offence. The majority of the judges, in this case, was then
of opinion that a venire de novo may be ordered by the
court of crown cases reserved in a case of felony.
In that Mellor's case, it seems by the remarks of Pol-
lock, C. B., Dears & B. 487, that all the judges were of
opinion that a venire de novo cannot be granted where
improper evidence has been received. See R. v. Gibson,
16 Cox, 181.
The Court of Queen's Bench, in the Province of Quebec,
in two instances, on setting aside the convictions, has
awarded a venire de novo, for admission of illegal evidence.
The first case is R. v. Pelletier, 15 L. C. J. 146.
The second case is R. v. Coote, 12 Cox, 557 ; L. -B. 4 P.
C. 599. This last case was brought in appeal before the
privy council, and the judgment was reversed, on the
ground that the first trial and conviction were valid, so
that the question of the power of the court to award a
venire de novo, when the verdict is vacated on the admis-
sion of illegal evidence, was not determined.
In R. v. Quay, 18 L. C. J"., 306, the Court of Queen's
Bench, upon a case reserved for its consideration on the
legality of certain evidence received at the trial, held that
the evidence had been improperly admitted, and quashed
the verdict, but the report does not show whether the
court ordered either the discharge of the prisoner or a
venire de novo. In R. v. Chamaillard, 18 X. C. J. 149,
upon a case reserved, the Court of Queen's Bench va-
cated the judgment, on the ground that the first trial was
null and void, but gave no order, either as to the dis-
charge or the trial de novo of the prisoner. In this case,
the prosecutor subsequently moved for a venire de novo
before the original court, upon which the judge reserved a
second case for the consideration of the full court on the
PROCEDURE ACT. 987
question whether he had the right to order a venire de
novo ; but the Court of Queen's Bench refused to decide the
point, on the ground that they had not jurisdiction to do
so, evidently overruling R. v. Daoust, 10 L. C. J. 221,
though the report does not show that the court's attention
was called to this last case. See note to 1 Bishop, Crim.
Proc. 10-17, on the subject.
In R. v. Feore, 3 Q. L. R. 219, the first trial being declared
null the prisoner was ordered to be re-tried.
The cases of R. v. Yeadon, R. v. Mellor, and Levinger
v. R., cited supra, seem to leave no doubt on this question.
If the judgment or sentence has been passed by the court,
where the trial was held, the court of crown cases reserved
can either reverse, affirm, or amend the judgment or avoid
such judgment, and order an entry to be made on the
record that the party convicted ought not to have been
convicted. If the sentence or judgment has not been
passed by the court whence the case comes, then the
court of crown cases reserved can arrest the judgment,
or order that such judgment be given by the court whence
the case comes at a subsequent session thereof. In both
cases, the court of rrown cases reserved has the power to
make such other order as justice requires.
But, as said by Channell, B., in R. v. Yeadon, ubi
supra, the court of crown cases reserved cannot reverse,
affirm or amend the verdict. It can affirm, reverse or
amend the judgment, if there is one; if there is none yet
it may arrest it, or order it to be pronounced. Then it may
order anything else which justice requires. If the first
trial is a mis-trial, for any reason appearing on the face of
the record, then, as in R. v. Yeadon, the court declares it
to have so been, and orders a venire de novo, or such other
order as justice requires.
988 PROCEDURE ACT.
The enactment contained in the aforesaid section of the
Procedure Act certainly implies that in any case where the
former trial has been adjudged to be a nullity, the offender
may be subsequently tried for the same offence. If there
has been a mis-trial, the defendant has not been put in
jeopardy. If it appears by the record that no legal judg-
ment can be given on the first verdict, it is, as it has been
seen, one of the cases specially mentioned, where a venire
de novo not only may, but must, issue. This is not an
application left to the discretion of the judge, as in the
case of a motion for a new trial by the defendant. A venire
de novo cannot be refused any more than the first venire
could have been. In the eyes of the law there can, it is
true, be had only one legal trial for the same offence ; but
it is that legal trial which is ordered on a venire de novo.
The proceedings held in the case so far are declared not to
be in law a trial ; see R. v. Fowler, 4 J3. & Aid. 273. If
the indictment has not been quashed, the offender stands
charged of an offence for which he has not yet been punished
though not acquitted of the charge. The former convic-
tion against him does not any longer exist. He could not
plead it in bar to a second indictment, because it was not
a lawful conviction, 1 Chit. 461, and he was not lawfully
liable to suffer judgment for the offence charged against
him. — R. v. Drury, 3 C. <& K. 190. If he may be tried
again on a new indictment, why not try him on the same
indictment, if it stands, and avoid delays, costs and annoy-
ances to the prisoner as well as to the prosecutor.
In R. v. Kerr, 26 U. C. C. P. 214, the court held that
the first trial being a nullity, the defendant could be tried
again without the necessity of ordering a venire de novo.
There is no doubt that on a writ of error, a venire de
novo could be awarded, if the first trial is a nullity. " A
PROCEDURE ACT. 989
mis-trial vitiates and annuls the verdict in toto, and the only
judgment is a venire de novo, because the prisoner was
never, in contemplation of law, in any jeopardy on his first
trial."— Wlielan v. B., 28, U. C. Q. B. 2 and 137. It is
not law that this can be done only on a writ of error,
and every time that the first verdict is set aside, on account
of a mis-trial, such a venire de novo should issue.
In R. v. Winsor, 10 Cox, 276, Chief Justice Cockburn
said :
" No man ought to be put in peril twice on the same
charge. I entirely agree with that maxim. But we must
take that fundamental maxim of the criminal law accord-
ing to what is really meant by it. It means this, that a
man shall not twice be put in peril. After a verdict has
been once pronounced, that verdict being one which it was
competent for the jury to pronounce, you shall not harass
a man a second time if he has been once convicted and
sentenced. Still less shall you harass a man a second time
if he has been pronounced not guilty by a jury of his
country. It does not follow because from any particular
circumstance or reason a trial has proved abortive, that
then the question involved in the case shall not be again
submitted to the consideration of a jury, and determined as
right and justice may require". And Blackburn, J.,
said :" For the reasons given by Crampton, J., in Conway
and Lynch v. the Queen, which I will not repeat, I quite
concur in his conclusion that the principle is this ; that
where, upon the jury process going, there has not been a
verdict decisive of either guilt or innocence, whether it be
from error in the judge or the fault of the jury, or inevitable
accident, or the judge improperly discharging the jury, and
the indictment has not been disposed of, in all such cases
there ought to be a venire de novo"
990 PROCEDURE ACT.
Motion in arrest of judgment. — The defendant, after
conviction, may move at any time in arrest of judgment,
before the sentence is actually pronounced upon him.
This motion can be grounded only on some objection
arising on the face of the record itself, and no defect in
the evidence, or irregularity at the trial, can be urged at
this stage of the proceedings. But any want of sufficient
ceitainty in the indictment, as in the statement of time or
place (where material), of the person against whom the
offence was committed, or of the facts and circumstances
constituting the offence, or otherwise, which has not been
amended during the trial, and is not aided by the verdict,
will be a ground for arresting the judgment.
The court will ex proprio motu, arrest the judgment,
even if the defendant omits to move for it, when it is
satisfied that the defendant has not been found guilty of
any offence in law. If a substantial ingredient of the
offence does not appear on the face of the indictment, the
court will arrest the judgment. — R. v. Carr, 26 L. C. J.,
61. Judgment will also be arrested if the court does not
appear by the indictment to have had jurisdiction over the
offence charged. — 8th Crim. L. Com. Report, 162; R. v.
Fraser, 1 Moo. C. C. 407.
A party convicted of felony must be present in court, in
order to move in arrest of judgment ; so a party convicted
of a misdemeanor, unless his presence be dispensed with
at the discretion of the court. — 1 Chit. 663 ; Cr. L. Com,
Rep. loc. cit.
If the judgment be arrested, the indictment and all the
proceedings thereupon are set aside, and judgment of
acquittal is given by the court, but such acquittal is no
bar to a fresh indictment. — Archbold, 170 ; 8th Cr. L,
Com. Rep. 163 ; 3 Burn, 58.
PROCEDURE ACT. 991
Greaves MSS. note on new trials and venire de novo.
Greaves' MSS. note. — The question put to me by Mr.
Justice Taschereau is :
In cases where the court of crown cases reserved quashes
the conviction because illegal evidence has been received
against the prisoner, or because legal evidence offered by
the prisoner has been refused, say HoWs case, for instance*
Bell, C. C. 280, can the court order a venire de novo ?
"The statute authorizes the court of crown cases
reserved :
I. — To reverse, affirm or amend any judgment.
II. — To avoid such judgment and to order an entry to
be made on the record " that the defendant " ought not to
have been convicted.
III. — "To arrest the judgment."
IV. — "To order judgment to be given thereon at some
other session," " if no judgment shall have been before
that time given, as they shall be advised."
V. — " Or to make such other order as justice may
require."
Nos. I & II relate to cases where a judgment has been
given ; Nos. Ill and IV to cases where no judgment has
been given; and V to all cases where justice requires
something to be done, either in addition to, or wholly
independent of, any of the things that are previously
specified.
The act creates an entirely new court, and runs wholly
in the affirmative. Every question of law may be
reserved ; and, if reserved, must be finally determined ;
and when so determined, the subsequent proceedings are to
be in accordance with that determination. The act leaves
it quite open as to their form, and does not require them
to be in any existing form. It introduces new forms, e. g.,
992 PROCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
the avoiding judgments and ordering entries on the record
and adds general words, which clearly proves that the
forms might be varied to meet the particular case. In
some cases it is clear the judgment must be complete,
e. g., where the judgment is affirmed, and it cannot be
doubted that it was intended to be so in all cases ; other-
wise a judgment on error would be complete, whilst a
judgment under this remedial act would not be so, e. g.,
a venire de novo on error ; a mere reversal under this act.
Although the section is very badly worded, it is,
perfectly clear that the court not only may, but ought to
award any and everything that justice requires to carry
out to the fullest extent their decision. The clause not
only applies to judgments, but also to a judgment and
order to make an entry on the record ; and to an order to
give j udgment, and to such other orders as justice may
require ; and then " such judgment and order, if any," are
to be certified in the manner pointed out.
It is quite clear, therefore, that there may be an order
in addition to a judgment ; and as the record of the indict-
ment is not before the judges, and the decision must in all
cases be certified to the officer, who has the custody of the
indictment, and who is to enter it on the record, and send
a certificate to the sheriff or gaoler, it is difficult to see
how any case can arise where the judges must not give
some order in addition to their judgment.
In order to determine whether a venire de novo can be
granted, it is best to point out what that proceeding really
is, and we can have no better form than that in Campbell
v. B., 11 Q. B. 814, the year before the act passed. It
ran thus : * It is considered by the court here that the
yerdict and judgment upon the said indictment be, for
PROCEDURE ACT. 993
Greaves' MSS- note on new trials and venire de novo.
the errors aforesaid, set aside and annulled ; and that the
.Eecorder, etc., in and for, etc., do award a writ of venire
facias de novo upon the said indictment ; and that the
keeper of Millbank do deliver the prisoner to the gaoler
of the City of Chester." Now, it appears to me that the
whole of this or, at all events, all down to and including
the words " the said indictment " where lastly mentioned, is
comprised in the judgment. It is all governed by the formal
words of the judgment, "it is considered by the court."
The English form simply is that "you cause to come
. anew ; " the last word being the only difference from the
venire facias. — Chit, forms, p. 73. Then, assuming that
all I have pointed out is the judgment, can the court so
reverse the judgment and award such a venire de novo?
And I think it clear that they can, and, when the case shows
that justice requires it, they ought. The case oiDavies v.
Pierce, 2 T. It. 53, is an express authority for the latter
proposition.
As to the objection that the act gives no authority to set
a verdict aside, the answer is clear. The judgment on the
question reserved will show that the verdict is a nullity, and
• this must appear on the face of the proceedings, and a nullity
in law is exactly the same as if it did not in fact exist.
Before this act, when the Court of Queen's Bench had an
erroneous judgment before them on a writ of error, and the
indictment was good, they could only reverse the judgment,
and neither pass the proper sentence, nor send the record
back to the court below, in order that the proper sentence
-might be passed, — R. v. Bourne, 7 A. & E. 58. But sec. 5,
which was passed to remedy this, provides that whenever
a " court of error shall reverse the judgment," it may either
■pronounce the proper judgment, or remit the record to the
OOO
994 PROCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
court below, in order that it may pronounce the proper judg-
ment. Now a case might occur where this clause would,
enable the court of error to grant a venire de novo ; if that
be so, the act would be inconsistent in the most material
parts, unless the judges could do the same under sec. 2,
But supposing the sentence, set out consists of a judgment
of reversal and an order for a venire de novo, it can
admit of no doubt that it is ejusdem generis with an
avoidance of a judgment and an order of an entry that the
prisoner ought not to have been convicted. Indeed, it is
quite clear that whether the sentence be a judgment alone,
or a judgment and order, it is ejusdem generis with the
things especially named. It cannot be anything other than
a judgment or a judgment and order. Again, if under this
act no venire de novo can be awarded, the anomaly will
arise that whether a venire de novo can issue will depend
on whether the question be raised under the act or upon
a writ of error ; and the act will have provided a worse
instead of " a better mode of deciding difficult questions,"
if under it a venire de novo cannot issue.
Where the judges affirm or amend any judgment, or
direct a judgment to be given, they order the conviction
to be carried out to its full extent. So, if they avoid a
judgment because the facts do not prove the alleged offence
they direct the prisoner to be discharged. In these instances
the whole case comes to its legitimate conclusion. But, if
they cannot award a venire de novo, the ends of justice
will be retarded, and may be defeated. There may occur
a case of as brutal a murder as can be, where judgment
must be arrested for some formal defect, and if the judge
ordered the prisoner to be discharged, he might at once be
arrested, indicted and tried again ; for the former record
PROCEDURE ACT. 995
Greaves' MSS* note on nexc trials and venire de novo.
would not support a plea either of autrefois acquit or
convict. In such a case the effect of not granting a venire
de novo would be to make it necessary to institute a new
prosecution, and to give the criminal another chance of
escape.
It is immaterial that the words of the clause are in the
alternative. Two or more alternatives may clearly be
joined in a judgment, if necessary.
I will now turn to the cases, and first to those indepen-
dent of the act.
It is clearly settled that a venire de novo can be awarded
in a criminal case upon a writ of error. — Gray v. R., 11 C.
is F. 427. Campbell v. R, 11 Q. B. 838. Levinger v. R,
11 Cox, 613. Winsor v. R, 6 B. & S. 143; 7 B.&S. 490.
In Campbell v. jR., the Queen's Bench ordered the Recor-
der of Chester to issue a venire de novo, and the Exchequer
Chamber affirmed this judgment. R v. Fowler, 4 B. &
Aid. 273 shows that a court of quarter sessions can grant
a new trial, and this case was approved and acted upon in
Campbell v. R., (11 Q. B. 814; on the ground that that
court is not a court of inferior jurisdiction. See aLso R. v.
Smith, 8 B. <L- C. 342.
I now come to the cases on this act.
In R. v. Mellor, Dears. ic B. 468, there was a great diffe-
rence of opinion whether a venire de novo could be awarded
under the act. The question was only started by Lord
Campbell, 0. J., after the argument was over ; and, as far
as I can discover, from the judgments, Lord Campbell, C. J.
Cockburn, C. J., Wightman, J. and Watson, B., held that a
venire de novo might be awarded ; and Coleridge, J. and
Martin, B., thought that a new trial might be directed, but
that a venire de novo was not the proper form. Pollock, C.
996 PROCEDURE ACT.
Greaves' 3ISS. note on new trials and venire de novo.
B., Erie, J., Crompton, J., Willes, J. and Channell, B., held
that a venire de novo could not be granted. Crowder, J.
and Byles, J. doubted ; Williams, J., thought the case was
reserved too late. The majority, therefore, thought that a
new trial could be granted ; and it seems not to be very
material whether the new trial be granted by the usual
form of a venire de novo, or by some other ; for in sub-
stance both would be the same ; and a simpler form could
hardly be invented than the old form. It seems to me that
the reasons in favor of a new trial are simply overwhelmingj
especially those of Wightman, J. and Martiu, B.
In the subsequent case of R. v. Yeadon, L. & G. 81, the
indictment charged the prisoners in different counts with
inflicting grievous bodily harm, wounding, and an assault
occasioning bodily harm. The jury found them guilty of
a common assault. The chairman held that they could
not find them guilty of that, on that indictment; and
directed them to reconsider their verdict ; and they then
found them guilty. It was held that the first verdict
was perfectly legal, and ought to have been received ;
that there had been a mistrial, and there must accordingly
be a venire de novo. Now this judgment was delivered,
after time taken to consider, by Pollock, C. B., and Wight-
man, J., Williams, J., Martin, B., and Channell, B. concurred
in it. Either, therefore, they considered R. v. Mellor to
have settled the question, or they were satisfied now that
a venire de novo was right; and in this latter view Pollock,
C. B. and Channell, B. must have chauged their opinions
and Williams, J., must have held that, where a case was
properly reserved, a venire de novo might issue. The case
is a very strong authority ; as the offence was so trifling,
and so much deliberation was devoted to it ; and the more
PROCEDURE ACT. 997
Greaves MSS. note on new trials and venire de novo.
so, as it placed the prisoners in jeopardy of being convicted
of the aggravated offence, after having been lawfully
acquitted of the aggravation. It, perhaps, deserved consi-
deration whether the sessions might not have been ordered
to enter a verdict of guilty of a common assault, which was
held to be the lawful finding. It is obvious that that would
have been the course exactly in accordance with justice.
R. v. Virrier, 12 A. <£ E. 317, shows that a verdict in a
case of misdemeanor may be amended by a judge's notes ;
and the case reserved is even more legal evidence to amend
by. My opinion is that the order just suggested might
properly be made.
However, there can be no doubt that this case is a con-
clusive authority that the judges have power to issue a
venire de novo under the act.
The next question is, can a venire de novo issue, because
it appears on the case that illegal evidence has been
admitted or lawful evidence excluded ; and I am very clear
that it can. The question seems to arise in consequence of
R. v. Oldroyd, R. & R. 88 ; R. v. Ball, R. & R. 132 ; R.
v. Treble, R. & R. 164; Tinckler's Case, 1 East P. C.
354, which seem to prove that if there be ample evidence
to support an indictment after rejecting the improper
evidence, the conviction will not be set aside. But much
doubt is thrown on this doctrine, as stated in R. v. Ball, by
Lord Denman's note in 1 Den. p. V. preface, as to the real
facts of Tinckler's Case, on which R. v. Ball was founded,
and R. v. Hurling, 1 Moo. G. C. 39, is contra. And it seems
to me perfectly unconstitutional for judges to take upon
themselves to decide, in a criminal case, upon the effect of
the admission or rejection of any evidence on the mind of
a jury; and the later cases of Crease v. Barrett, 5 Tyr,
9y8 PEOCEDURE ACT.
Greaves' MSS. note on neio trials and venire de novo.
458, Wright v. Doe d. Tatham, 7 A. & E. 313, De
Butzen v. Farr, 4 A. & E. 53, and Bessey v. Windham,
6 Q. B. 166, show that where inadmissible evidence is
received in a civil suit a new trial is a matter of right ; as
it is impossible to say what weight it may have had on a
jury ; and no doubt they would be followed in any criminal
case, where Ihe question could arise on a record in the
Queen's Bench. And under this act, if the question be
whether any evidence has been improperly received or
rejected, the judges can only decide that question ; and if
they decide in favor of the prisoner, they must adjudge
accordingly. They cannot decide that any of the evidence
was inadmissible, and affirm the conviction. Formerly, in
civil cases, the courts exercised a discretion whether a new
trial should be granted for the erroneous admission or
rejection of evidence, and that accounts for B. v. Ball, etc.
But, under the act, a question of law only is to be decided,
and, when that has been done, the further proceedings
must follow the result.
In Daviesv. Pierce, 2 T. B. 53, the declarations of occu-
piers of lands, that they rented the lands and paid rent to
Mr. Evans, being rejected, a bill of exceptions was tendered,
and the record removed into the King's Bench, who held
that the evidence ought to have been received ; and, after
time to consider what was next to be done, the court
granted a venire de novo, and Buller, J., said " unless some
extraordinary reasons be urged to the contrary, I have not
the least doubt but that a venire de novo must be granted."
As no distinction can be drawn between the admission and
rejection of evidence, and as this case has never been ques-
tioned, it is a conclusive authority on both points, and,
equally so, in criminal as in civil cases.
PROCEDURE ACT. 999
Greaves' MSS. note on new trials and venire de novo.
I do not enter into the cases as to where a venire de
novo can or cannot be granted according to the decisions
independent of this act ; the act creates an entirely new
mode of procedure ; and I am clear that the only true test
of whether or not a venire de novo ought to issue under it
is, whether justice requires it or not; or, more widely,
whether the case ought to be submitted to another jury.
In all other cases, it is clear to me that, whether the
question be decided for or against a prisoner, the court
ought to carry out the decision either exactly as it would
have been, if the question had been decided in the same
way on the trial, or as near thereto as may be practicable.
I will next proceed to consider R. v. Sca>fe, 2 Den. 281,
and 17 Q. B. 238 ; R. v. Bertrand, 10 Cox, 618, and A" G.
v. Murphy, 11 Cox, 372, and it will be clearly shown,
unless I am much in error, that R. v. Scaife was well
decided, and that the other cases are altogether erroneous.
In order to a correct understanding of these case3, the
procedure in our courts in criminal cases should be clearly
known. The Court of Queen's Bench has two different
criminal jurisdictions ; it may deal with all cases where
an information is filed or an indictment is found, in that
court, aud it may also deal with all indictments that are
removed before trial by certiorari into that court from the
courts of oyer and terminer or gaol delivery (which I will
call the assizes hereafter), or quarter s3ssion3. It seems
that, originally, the trial in all these cases was before all the
judges of this court, and that trials at bar, such as R. v.
Orton, in the Tichborne case, are the original mode of
trial. It is obvious that such a proceeding must have
been extremely inconvenient, and by the 27 Edw. 1, St., 1, s.
c. 4., intitled " nisi prius shall be granted before one of the
1000 PROCEDURE ACT.
Greaves' MSS- note on new trials and venire de novo.
justices of the court where the suit is commenced," it is
enacted that inquests "shall be taken in the time of
vacation before any of the justices before whom the plea is "
brought ;'' but it adds " unless it be an inquest that
requires great examination;" which supports the opinion
that trials at bar were the mode of trial originally. Tiiis
act only authorized nisi prius before a judge of the same-
court, in which the suit began. But by the 14Edw. Ill,
St. 1, c. 16, nisi prius may be granted before a judge of ;
another court, and the verdict is to be returned into the
court where the record is, and there judgment is to be;
given. The effect of these statutes is to make the judge, •
whether he be a judge of the court where the record is or
not, a representative of the other judges of that court, and .
to make the trial exactly the same as if it had taken place
before the full court, and hence it is that the report of the :
judge who tried the case, whether written or verbal, is
always acted upon by the court. The following is a strik-
ing case. In R. v. Wooler, 6 M. & S. 367, an inform-
ation was filed by the attorney general for a blasphemous
libel, and the defendant was found guilty before Abbott,
J., at the London sittings, and the next day he reported
verbally to the full court that the jury retired to consider
their verdict, and on their return into court the foreman
gave a verdict of guilty and said they all agreed, and the
verdict was recorded; Abbott, J., then summed up the
course he had taken when the jury retired, and said that !
then a barrister informed him that some of the jury had not
agreed in Wooler s case ; and it appearing to him, Abbott, ■
J., to be doubtful whether from the particular situation of ■
some of the jury, they might not exactly hear what had
passed, he made this statement to the court; and a new*
PROCEDURE ACT. 1001
Greaves MSS. note on new trials and venire de novo.
trial was ordered at the suggestion ofthe court itself. This
is a very important case on several grounds. It was an
information filed by the attorney general and tried at nisi
prius in London. The court acted on the verbal report of
Abbott, J., exactly as if they had all been present at the
trial. It shows that the court will grant a new trial in a
criminal case when there is any reason to doubt the
correctness of the verdict.
The jurisdiction of the Court of Queen's Bench in crim-
inal cases arises from its being the Sovereign court of oyer
and terminer and gaol delivery. The Privy Council in the
first case obi supra took no notice ofthe nature of the court ;
but in the second, they say " the supreme court sitting in
banco in term, could (not) take cognizance as a court of
appeal of the judgment pronounced by Fawcett, J., at the
session of oyer and terminer, which had come to an end
before the session in banco began." This is altogether erro-
neous; the trial was at nisi prius in the supreme court, and
just was exactly like R. v. Wooler, the only difference is that
prosecutions for felony in that court are by information at
the suit of the attorney general. The court in banco was
neither a court of appeal, nor was the session of oyer and
terminer ended. It was the same supreme court, and the
trial was in contemplation of law exactly as if it had taken'
place before all the judges, and the new trial had been
granted by them. A graver mistake could not have been
made, for there is no doubt that our Queen's Bench can-
not grant a new trial, where the case has been tried at the
assizes or the crown side ; for it cannot have the facts
before it ; and it is because the facts are before it when a
case is tried on a record of the Queen's Bench that that
court can grant a new trial in any case. This mistake com-
1002 PROCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
pletely destroys the authority of both R. v. Bertrand and
A. G.v. Murphy ; for in neither, was the true nature of the
case seen, and all that these decisions amount to is simply
this, that the supreme court cannot grant a new trial in
felony, where the case has not been tried before it, but
under a commission of oyer and terminer or gaol delivery.
And here, I cannot help questioning the decision in R.
v. Bertrand that the Privy Council could hear the case.
In R. v. Wooler the court acted on the verbal statement of
the judge ; how could an appellate court deal with such a
case ? Although there are written notes of what may have
occurred at a trial, it is difficult to see how they could be dealt
with in an appellate court ; and in such cases, it is clear in
England that no appellate court can notice them. Yet no
notice seems to have been taken of these points. — In that
case of R. v. Bertrand, an information for murder filed by
the attorney general in the supreme court of N. S. Wales was
tried before the Chief Justice, but the jury could not agree
and were discharged ; and the prisoner was afterwards tried
by another jury, and a verdict of guilty given, and a new
trial granted by the supreme court, on the ground that the
judge's notes of the evidence of witnesses on the previous
trial had been improperly admitted in evidence. On appeal
to the Privy Council, this decision was reversed. The
grounds of the reversal are open to much observation. The
first was that no new trial could be granted in any case of
felony. This position is clearly erroneous in many cases as
will be shown. The second was that R. v. Scaife was the
only case where an application for a new trial in felony had
ever been made. It will hereafter be shown that R. v.
Ellis, 6 B. & C. 145, completely refutes this statement.
JR. v. Scaife was misunderstood. The court said that,
PROCEDURE ACT. 1003
Greaves' MSS. note on new trials and venire de novo.
n that case, Cresswell, J., " admitted a deposition subject
to the objection ; the meaning of which probably was that
he might upon consideration have referred his ruling to
the court of criminal appeal." This is a strange mis-
take ; a judge at nisi prius has no power so to do ; and
that great judge knew the right course perfectly well.
He " thought that a3 the record came from the Queen's
Bench, that was the proper tribunal to deal with the case,"
and he informed the prisoner's counsel that " he thought
the admissibility of the deposition should be raised in
that court. " — 2 Den. 286. And it was so raised accord-
ingly-
The court relied very much on there having been no
application for a new trial before that case, and that
since that decision no attempt had been made to press that,
case a3 an authority. If it had been considered how extreme-
ly rarely indictments for felony are tried in the Queen's
Bench or on Queen's Bench records, it would have been seen
how extremely weak such a point is. In my long expe-
rience on the Oxford Circuit I only remember one ; and I
never heard of another ; and I much doubt whether a ny
except the cases reported have come before the court after
verdict. The reasons are clear ; it requires special grounds
to remove a case into the Queen's Bench; and where removal
takes place, the same proportional number of acquit-
tals and convictions will occur as in cases tried at the
assizes ; and in acquittals, there can be no new trials, and
in convictions, it is not in one case in twenty that there
can be any ground for a new trial. It was anything rather
than reasonable to rely on the absence of such cases.
(Since the preceding was written careful search has been
made in the crown office, and in the last 33 years there
1004 PKOCEDURE ACTV
Greaves' MSS. note on new trials and venire de novo.
have been only 55 cases of felony and only about 11 convic-
tions, which may be reduced to about six actually separate
cases ; and R. v. Scaife seems to be one of them. Noth-
ing could more strongly confirm my views ; and I have
no doubt now that the reason why other cases of applica-
tions for new trials have not been found is that there have
been no cases in which there was any ground for making
them, even if there were any cases where an application
was capable of being made.)
Again, no mention is ever made on the record of the
application for or of the grant of a new trial. And in
Bright v. Eynon, 1 Burr. 394, Lord Mansfield, C. J., said
" the reason why this matter cannot be traced further back
is that the old report books do not give any accounts
of the determinations made by the court upon motions."
Neither this case nor R. v. Mawbey, 6 T. R. 619, were
cited. In the latter, the court held, for the first time, that
a new trial in a criminal case might be granted as to the
defendants that had been found guilty only, on the ground
that justice required that should be done ; although no
precedent could be found.
. The evidence of some of the witnesses on the former
trial, in this Bertrand case, was read from the judge's notes,
at the instance of the prisoner personally and on the appli-
cation of his counsel ; and this course was disapproved by-
the Privy Council, who said : " It is a mistake to consider
the question only with reference to the prisoner. The
object of a trial is the administration of justice in a course
as free from doubt or chance of miscarriage as merely
human administration of it can be, not the interests of
either party." This remark very much lessens the impor-
tance of a prisoner's consent even when he is advised by
PROCEDURE ACT. 1005
Greaves' MSS. note on new trials and venire de novo.
counsel, and substantially, not of course literally, affirms
the wisdom of the common understanding in the profession
that a prisoner can consent to nothing. This supposed
common understanding seems to be as unfounded in law as
it is in reason. A man may plead g lilty, if he likes,
though the court advises him not to do so. What is that
but consenting to a verdict against himself? The very
question " are you guilty or not guilty " assumes that
he may so consent. It is every day's practice for it to be
openly stated in court that a prisoner pleads guilty by the
advice of his counsel ; and it would be difficult to suggest
a reason why he should not do so. Can anything be more
absurd than to hold that this prisoner could not consent to
the evidence being read, and yet that he might plead guilty,
and thereby consent to be hung ? Our ancient lawyers
were more sensible men. In Mansel's Case, 1 And. 104,
after stating an imperfect verdict, the record alleges that he
was asked whether he wished to be freed from that verdict,
and he answered that he did, and so he, of his own consent,
was freed from the verdict ; all the judges at Serjeant's
Inn held that this course was right. It is true that in this
case there was no verdict in point of law ; as Foster, J.,
pointed out in Kinloch's Case, Fost. 31 ; but that does not
invalidate the ruling of all the judges that a prisoner may
consent even in a case of murder. So in Kinloch's Case,
Fost. 16, after the jury had been charged, they were dis-
charged " at the request and by the consent " of the pris-
oners, aud this was held right. In this case Foster, J., said
" in capital cases I think the court is so far of counsel with
the prisoner that it should not suffer him to consent to
anything manifestly wrong and to his own prejudice."
Even this great criminal lawyer omitted to perceive that
1006 PROCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
the judge cannot prevent a prisoner from stating in court
what he may think fit. All that the judge can, or ought
to do, is to explain to the prisoner the position in which he
is, and the consequences of what he is going to do, and then
the prisoner is clearly entitled to act as he likes. In R. v.
Edward, R. & R. 224, where a juror was taken ill and
another sworn in his place, the judge said the witness must
be examined over again ; but the counsel said if the judge
read his notes over that would be sufficient ; accordingly
he read his notes over to the witness, asking him at the
end of every sentence if it was right, to which he answered
in the affirmative, and was then cross-examined ; and the
conviction was affirmed. This case was not cited in R. v.
Bertvand.
In A. G. v. Murphy, 11 Cox, 373, an information for
murder filed by the attorney general in the supreme
court of N. S. Wales was tried at a "session of the
said supreme court as a court of oyer and terminer and
general gaol delivery" before one of the judges of the
same court, and the prisoner was convicted, and a rule
was granted by the said supreme court why a venire
de novo should not issue on the ground that, during adjourn-
ments of the trial, the jurors were permitted to see news-
papers containing reports of the trial as far as it had gone.
One report was headed "The South Creek Murder Case,"
and another stated that a " witness was cross-examined, but
was not shaken in his evidence." That rule was made
absolute ; but on appeal to the Privy Council that judg-
ment was reversed. The first ground stated for the reversal
was that " the law is clear that the discretional power vested
in certain courts and cases to grant new trials does not
extend to cases of felony." Now in this case the
PROCEDURE ACT. 1007
Greaves' MSS. note on new trials and venire de novo.
question was altogether different from that in R. v.
Bertrand. There the question was whether a new trial
could be granted on the merits; here it was whether a
new trial could be granted for misconduct, bias, and
want of impartiality of the jury, or (as the court put it)
by reason of some irregularity in the trial." Yet the court
held that the rule so laid down in R. v. Bertrand governed
the case.
The court next say that "each of these cases falls within
the rule that no person ought to be put in peril twice on
the same charge." A stranger misapplication of a rule was
never made. The rule was made for a prisoner's benefit ;
and here it is used to prevent him obtaining a fair trial,
and a chance of saving his life. It is almost needless to
say that the rule only applies where there has been a
lawful conviction or acquittal, and not where the question
is whether it be lawful or not.
The court then rely upon the dictum of Blackburn, J., in
R. v. Winsor, 14 L. T. 195 ; 10 Cox, 276 that " where the
jury have once found a verdict of conviction or acquittal^
the matter has become res-judicata, and after that there
can be no further trial." Whether that dictum, when strictly
tied down to the question on which it was uttered, was
correct or not, need not be discussed. It is immeasurably
too wide as a general proposition ; for it would preclude
new trials in all misdemeanors, all reversals on error, and
all arrests of judgment ; and it is plainly no authority
where the question is whether the verdict is right.
Then the court seems to have become at last aware that
in some cases, there might be a new trial in felony, though
this was unknown to them in R. v. Bertrand, and is incon-
sistent with the general propusitiou at the beginning of this
1008 PROCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
.judgment. They say "the eases, in which a verdict upon
a charge of felony has been held to be a nullity and a
venire de novo awarded, have not been classified in the
digests ; there are cases of defect of jurisdiction, in respect
of time, place or person — cases of verdicts so insufficiently
expressed, or so ambiguous that a judgment could not be
founded thereon ; but we have not discovered any valid
authority for holding a verdict, of conviction or acquittal
in a case of felony delivered by a competent jury before a
competent tribunal, in due form of law, to be a nullity by
reason of some conduct on the part of the jury which the
court considers unsatisfactory." We think the search must
have been very superficial, or (we much regret to add) the
eases very little understood. At all events it would have
been very much more satisfactory, if the court, instead of
looking merely for cases in point, had taken pains to
ascertain the principles upon which verdicts had been set
aside, and then considered whether this case was not
within those principles. The right under Magna Charta is
.that every prisoner shall be tried per legale judicium
pariwm suorum ; (see the remarkable record in 1 Hale,
345) ; and, in our humble judgment it needed no case to
prove that no jury that is improperly biassed or prejudiced
can be a lawful jury, and consequently if that be shown, or
even if a real doubt be raised as to that being the case,
the verdict cannot stand.
Again the court say " none of the authorities cited for
the defendant appear to us to sanction the notion that a
verdict, even in a civil case, could be set aside upon an
imagination of some wrong without any proof of reality.
The suggestions, upon which verdicts have been so set
aside in civil cases have alleged traversable facts, material
and relevant, to show that the verdict had actually
PROCEDURE ACT. 1009
Greaves' MSS. note on new trials and venire de novo.
resulted from improper influence; and we refer to the
special verdict reported in 11 H. 4 /. 17, as affording an
example of such facts as would, if stated in a suggestion on
the record, have had the effect of setting aside the verdict."
Now no case was ever more thoroughly misunderstood,
or more completely perverted into the very opposite of
what it decided, than this case.
In order properly to understand the case, it is better to
state what the practice was under similar circumstances
at the time when it occurred. In ancient times, when any
charge of misconduct, partiality, etc. , was made against a
jury, the practice was for the judge to examine the jurors
as to it, and if they admitted it, their admission was entered
on the record. Thus where a charge was made that some
of a jury had separated, drunk, and been biassed by a
stranger, the judges at nisi prius examined the jurors,
who confessed it, and their confession was entered as
parcel of the record, and nevertheless the judges took their
verdict, 14 H. VII ; 29, 15 H. VII, 1. So, where a witness
was examined by a jury after they had retired to consider
their verdict, and complaint was made to the judge, he
examined the inquest, who confessed all the matter, and it
was entered on the postea. — Metcalfe v. Deane, Cro. El.
189. And see Vicary v. Farthing, Cro. El. 411 ; G
v. Short, Cro. El, 616.
The case in 11 H. IV. 17, is this : "The plaintiff in an
assize had delivered a scroll in writing to a juryman on
the panel for evidence of his matter, and after the same
juror, with others, was sworn, and put in a house to agree
on their verdict, he showed the same writing to his com-
panions ; and the officer, who kept the inquest, showed this
matter to the court ; wherefor the justices took the writing
PPP
1010 PKOCEDTJEE ACT.
Greaves' MSS. note on new trials and venire de novo.
from the jurors, and took their verdict, and by the exami-
nation of the jurors, the time of the delivery of the writing
was inquired into, and it was found (i.e. by the judges,
and not "by the jurors" as the Privy Council supposed)
ut supra ; and because the verdict had passed for the
plaintiff, he now prayed his judgment. Gascoigne and
Hulls, judges of the K. B., said that the jury after they were
sworn ought not to see or carry with them any other
evidence except that which was delivered to them by
the court, and by the party put in court upon the evidence
shown; and because they did the contrary, this was
suspicious (which words are omitted by the Privy Council.)
Wherefore he ought not to have judgmeut. (And after-
wards the plaintiff said that the writing proved the same
evidence as he himself gave to them at the bar; wherefore
it was not so bad as if it had not been read in evidence,
but it was not allowed.) The Privy Council omitted this
last passage between brackets.
Now it is quite clear that the same course of examining
the jury, etc., was followed here as in the cases above
referred to. Yet the P. C. call this "a special verdict;"
and say "the result of the examination, viz., that the
verdict was not according to the evidence, but upon
evidence taken out of court, without the assent of the
other party, appeared by the finding of the jury ;n and,
again, that the court " ascertained the fact of the miscon-
duct of the plaintiff by examination of the jurors, while
acting as jurors, and by their verdict."
Whereas nothing is clearer than that the only verdict
the jury gave was for the plaintiff upon the issue joined ;
and it is very difficult to understand how the Privy Coun-
cil could imagine that a jury could find any verdict as to
PROCEDURE ACT. 1011
Greaves MSS. note on neic trials and venire de novo.
anything else ; and still more so, a verdict that would
have convicted themselves of irregularity, if not more.
But it is still more surprising that the Privy Council
whilst professing to translate the case should have
omitted all version of ceo fait suspicious; for that
is the very ground of the judgment; for what was said
by the judges was the judgment of the court. Rolle
(trial verdict, D. pi. 9., p. 714) well puts this case on the
ground that the delivery of a writing to the jury will
avoid a verdict for the party who delivered it, although he
give the same evidence to the jury at the bar; and neither
in this nor in any other case did the court enter into any
inquiry whether in fact the jury was biassed. This case
is a distinct authority that if a party give a paper to a jury,
which may possibly bias them, and they find a verdict for
him, this makes the verdict so suspicious that it can not
stand ; and this case has always been followed in later
cases.
In a trial between the Bishop of E. and the Earl of
Kent, during a tempest some of the jurors separated them-
selves, and some person said to one of them, " Beware how
you act ; for the matter of the Earl is better than the matter
of the Bishop," and induced him to think ; and afterwards
the jury found a verdict for the Bishop. It was held
that the verdict was good; for it was contrary to the
inducement which was made for the defendant ; but, if
the verdict had been the other way, it would not have
stood; for it would be suspicious, (car il est suspeceo-
neux.) Y. B. 14 H. VII, 29 and 15 H. VII, 1. This
case was repeatedly argued before all the judges of both
benches ; and it was held that the distinction between
a verdict for the party, in whose favor the influence
1012 PROCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
was used, and a verdict against him, was that the ver-
dict for him showed that there was a bias in his favor ;
but the verdict against him showed that there was no
favor towards him ; and it was said to have been held
that, if a man gave money to a juror, who found a
verdict against him, the verdict was good ; but it would
have been otherwise if the verdict had been for him.
Lord Hale infers from this case that if the jury eat and
drink "at the charge of the prisoner, and the verdict
find him guilty, the verdict is good ; but if they find
him not guilty, and this appears by examination, the
judge before whom the verdict is given, may record
the special matter, and thereupon the verdict shall be
set aside, and a new trial awarded." — 2 Hale, 306. See
also Graves v. Short, Cro. El. 616.
The jury having heard all the evidence in a case of mur-
der, withdrew to consider their verdict, and being returned,
delivered their verdict into court in writing; and being
examined by the court how they came by that writing, con-
fessed it was delivered into their hands I y the prisoner as
they passed him. The court thereupon discharged the jury
of the prisoner and a new venire was awarded. Anon.
Fost. 27. This record was produced in court.
In Metcalfe v. Deane, Cro. El. 1^9, a witness for the
defendant was called by the jury after they had retired, and
they caused him to repeat his evidence, which was the same
in effect that was given before in court, and not different,
and they found a verdict for the defendant, and the court
held that the verdict was not good, because (according to
Rolle) " it is not certainly known to the court whether
this was the same evidence as was given at bar." — 2 Rolle
Abr. 715, pi. 13, who says he had sien this record.
PROCEDURE ACT. 1013
Greaves ATSS. note on new trials and venire de novo.
Now these cases clearly show that if there be any rea-
sonable ground to suppose that the jury may have been
improperly influenced, the verdict will be set aside ; and the
influence need not be created by the party in whose favor
the verdict is given ; for where handbills reflecting on the
plaintiffs character had been distributed in court and shown
to the jury on the day of the trial, a new trial was granted
against the defendant, though he denied all knowledge of
the handbills.— Coster v. Merest, 3 B. & B. 272. R. v.
Wooler also is a distinct authority that a reasonable doubt
of the correctness of a verdict is a sufficient ground for a
new trial in a criminal case.
Now let us see what the Murphy case is. It is distinct-
ly stated that the juror3 were allowed the use of news-
papers containing the heading "The South Creek murder"
and stating that a witness was cross-examined and not
shaken. This clearly was matter that ought not to have
been seen by the jury: as its tendency was against the
prisoner ; and the verdict was against him. It is impossi-
ble to conceive that any judge would have allowed the
jury to see these papers. The case clearly comes directly
within the principle established by all the authorities.
The decision on this point, therefore, was undoubtedly,
erroneous.
The supreme court had ordered a proper entry on the
record (in accordance with the authorities) that the jury
were improperly allowed the use of the newspapers. Yet
the Privy Council entered into a consideration of the docu-
ments, on which the supreme court acted. This is directly
contrary to Graves v. Shoi't, and in subversion of the rule
that nothing but the record itself can be considered. The
ground on which the Privy Council considered these docu-
1014 PROCEDUKE ACT.
Greaves' MSS. note on new trials and venire de novo,
ments was that they were referred to them with the case
by the crown ; but it can hardly be maintained that that
could make that lawful to be acted upon, which would
otherwise be unlawful.
Then the court proceeded to show that the sheriff and
his bailiffs are not like a party in a cause ; but that really
was not the point. The true question was, had the jury
access to papers which might improperly bias their minds.
I now pass from A. 0. v. Murphy. It is well next to
consider the supposed authorities for saying that there can
be no new trial in felony. — In R. v. Mawbey, 6 T. R. 619,
four defendants were indicted for a conspiracy, and two
of them acquitted and two convicted ; and one question
was whether a new trial could be granted as to the two that
were convicted without the others ; and it was contended
for these defendants that a new trial ought to be granted
wherever there would be a palpable defect of justice if it
were not granted. On the part of the crown, cases were
put to show that a new trial could not be granted in many
cases, in which there might be a palpable failure of justice.
Thus if a defendant, unquestionably guilty, were acquitted,
the court could not grant a new trial. So also if a defen-
dant be convicted of treason or felony, though against the
weight of evidence, there is no instance of a motion for a
new trial in such a case ; but the judge passses sentence
and respites execution till application can be made to the
mercy of the crown. It is clear that this passage refers to
cases of conviction on the crown side at the assizes, and not
to cases tried at nisi prius on King's Bench records ; for
until the 11 G. 4 & 1 Wm. 4, c. 70, s. 9, sentence could
not be passed on a conviction at nisi prius ; and the hard-
ship in so large a number of such cases was quite sufficient
PROCEDURE ACT. 1015
Greaves' MSS. note on new trials and venire denovo.
for the argument on the part of the crown. Again the dic-
tum merely asserts that no case of a new trial had been
found where it had been moved for on the ground of the
verdict being against the weight of evidence ; which is a far
narrower assertion than that no new trial could be granted
in any case of felony ; and very nearly amounts to an ad-
mission that, in some cases of felony, a new trial might he
granted. Then Lord Keuyon, C. J., plainly referring to
this dictum, said " in one class of offences iudeed, those
greater than misdemeanors, no new trial can be granted at
all." This dictum must in all fairness be limited to the
point put by the counsel for the crown ; otherwise it is
clearly too wide. This dictum, entirely separated from the
context, has been cited in Corner's C. P. 161, and elsewhere
as warranting the general proposition ; and I will apply
the dictum of Cockburn, C. J., in Winsor v. R., 14 L. T.
189, 10 Cox, 276, to it. " This loose dictum has been copied
servilely by text writers into their books until it has come to
be regarded as an authority." The only other case cited by
Corner is bright v. Eynon, 1 Burr. 390 ; but there is not a
word as to a new trial in felony in that case. But this case
and R. v. Maivbey are as strong authorities as possible that
the court will not yield to the mere absence of precedent
in opposition to the claims of justice ; but will grant a new
trial where the ends of justice cannot be attained without
it. In a note, 13 East, 416, it is said " in capital cases at
the assizes if a conviction take place upon insufficient evi-
dence, the common course is to apply to the crown for a
pardon"; but "I am not aware of any instance of a new
trial granted in a capital case." The context shows that this
means a case tried at the assizes.
In the same note, it is said that in Tinckler's Case, 1 East
1016 PROCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
P. O. 354, it seemed to be the opinion of the judges that
a new trial could not be granted in felony. Neither in East
nor in 1 Den. p. V. (preface) is anything of the sort men-
tioned ; and it is difficult to see how such a point could have
arisen. The prisoner was tried at Durham for murder ; and
a case was reserved as to the admissibility of certain dying
declarations, and the judges held the conviction right. It is
clear the judges could not grant a new trial; and, if any
thing as to a new trial was mentioned, it was wholly extra-
judicial, and all it could amount to was that where a case
was tried on the crown side at the assizes, no new trial
could be granted by any other court. The truth is that
all that has been said on this subject refers to cases tried
at the assizes or quarter sessions ; and, as there aTe no means
of bringing the facts before the Queen's Bench on error or
by certiorari, of course that court cannot grant a new trial.
The supposed general rule doubtless, originated with these
ordinary cases at assizes and sessions; but, like other
general rules, it is subject to the exception of the very
rare cases in the Queen's Bench. The following cases of
misdemeanor well illustrate the matter. In R. v. Oxford-
shire, 13 East 411, the defendants were found guilty of
the non-repair of a bridge at the assizes, and a motion was
made for a certiorari to remove the indictment into the
Queen's Bench in order to move for a new trial ; but it
was held that it could not be done, as the court could
have no information as to the merits. R. v. Nichols, Ibid,
notep. 412. So where the defendants were convicted at
the quarter sessions for the non-repair of a bridge, the
court at once refused to notice a case which had been
reserved for their opinion. R. v. Salop, 13 East 95. Again,
in R. v. Winsor, 14 L. T. 201, 10 Cox, 276, Blackburn, J.,
PROCEDURE ACT. 1017
Greaves' MSS. note on new trials and venire de novo.
said " a verdict may have been founded on circumstances
against evidence ; but that cannot be reviewed in a court of
error, because the evidence upon which the jury decided the
question of fact cannot be brought up to a court of error."
This remark was made with reference to a case of felony,
and it is quite inconsistent with the supposition that there
can be no new trial in any case of felony ; for it was
useless to draw such a distinction as to the facts being or
not being before the court, if in no case could the court
decide upon them.
But where a case is tried on a Queen's Bench record, the
evidence is brought before the court in banco, and it can
deal with it as it can in other cases tried on records of that
Court. The distinction, therefore, is that the Court of
Queen's Bench cannot grant a new trial either in misde-
meanor or felony where the case has been tried on the
crown side at the assizes or quarter sessions, because it
cannot have the facts before it. But that it can grant a
new trial in all cases of misdemeanor (whether on the
merits or otherwise) where the trial is on a record of that
court ; and also, in all cases of felony so tried, for any
formal defects ; and it is maintained that it can do so also
on the merits.
I now turn to a case which excited considerable notice
at the time. The prisoner was charged 'with stealing the
money of his mistress at Exeter, convicted and sentenced
to 14 years' transportation; but this judgment was
reversed on error. R. v, Ellis, 5 B. <k C. 395. He was again
indicted, and in consequence of the prejudice that existed
against him, the indictment was removed into the King's
Bench, and he was tried at nisi prius by a jury of the
County of Devon, and again convicted ; and within the
1018 PKOCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
four first days of the next terra a rale was applied for on
the ground that evidence of other stealings besides those
charged in the indictment had been improperly admitted ;
but the reports differ as to what the rule was. In 6 B.
& C. 145, it is said to have been a " rule for staying the
judgraent." In 9 D. & R. 176, it is said to have been " a
rule for a new trial;" and this is right; for I have
ascertained, from the crown office, that that is the entry in
the master's book. Lord Tenterden was present when the
application was made, and heard the grounds of it stated,
for he remarked upon them ; but as no motion can be made
in felony, unless the prisoner be present, the application
was postponed until he was brought up for judgment on a
subsequent day, when it was renewed and fully argued
before Bay ley, J. and Holroyd, J.,on the part of the prisoner,
but the counsel for the crown was not heard. Here then
we have a case of felony, in which a rule for a new trial was
applied for, argued, and decided on the merits, and not a
doubt suggested as to a new trial being grantable in felony ;
and it is clear that all these three great judges had no doubt
on the subject, otherwise they never would have listened
to the application or heard it solemnly argued ; but would
have instantly stopped the motion, as was done at once in
R. v. Oxfordshire and R. v. Salop. This case occurred
in 1826, when Lord Campbell and Cress well, J., very
probably were in court ; the one then being in great
business in that court, and the other, being joint reporter
with Barn wall. This case clearly was a good precedent
for R. v. Scaife, and it proves how unfounded is the
statement in the judgment in R. v. Bertrand that no such
application had ever been made before that case ; and, as
that erroneous supposition was the foundation of that
PROCEDURE ACT. 1019
Greaves' MSS. note on new trials and venire de novo.
judgment, it shakes that decision to the greatest extent. It
equally negatives the doctrine that no new trial can be
granted in felony ; for the more that doctrine is supposed
to have prevailed, the more unaccountable is it that the
application should have baen entertained, unless all the
judges were clear that the doctrine was erroneous.
In R. v. Scaife, the indictment had been removed into
the Queen's Banch and was tried by Cresswell, J., at York,
when two of the prisoners were convicted, and one acquit-
ted. CresswelL J., had admitted the deposition of an absent
witness, subject to the objection that it could not be
evidence against two of the prisoners, and he pointed out
that the question ought to be raised in the Queen's Bench,
as the record came from that court. — (2 Den. 286.) Xow
it is quite impossible to suppose that Cresswell, J., would
have taken this course, unless he was of opinion that that
court could set the matter right, and the only way in
which it could do so was by granting a new trial ; and the
only reasonable inference is that that great judge had no
doubt that a new trial might be granted in felony, and I
have little doubt that the similar course in R. v. Ellis, as
to the admissibility of evidence, was in the mind of Cress-
well, J., when he reserved the question.
Accordingly, a rule nisi for a new trial was obtained,
argued on both sides, and the rule made absolute by
Lord Campbell, C. J., Patteson, J., Erie, J., and Coleridge
J. Not a doubt was suggested as to a new trial being
grantable in felony. But after the judgment had been
delivered it was suggested (according to the Queen's
Bench report) that there was a difficulty as to what rule
should be drawn up, no precedent for a new trial in felony
having been found, on which Lord Campbell said " that
1020 PROCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
might have been an argument against our hearing the
motion." The court, after conferring with the master,
made the rule absolute. So that, having the question
directly brought to their notice, the court clearly thought
there was nothing in it. Probably the report is inac-
curate as to the difficulty about the rule. There could be
no difficulty in an ordinary rule absolute, as it would fol-
low the regular course ; but here, there was the difficulty
of making the rule absolute as to those prisoners only who
had been convicted, which was so much discussed in R. v.
Mawbey, in which it was decided that it might be done,
but no rule drawn up ; and probably this was the diffi-
culty. See the rule in 2 Ben. 287. The result of the
examination of these cases is that Lord Tenderden, C. J.,
Bayley, J., Holroyd, J., Lord Campbell, C. J., Coleridge, J.,
Patteson, J., Erie, J., and Cress well, J., must have been
of opinion that a new trial in felony might be granted at
the time, when these cases were before them, and the fact
that neither in the one case nor in the other did the counsel
for the crown venture to raise the question, strongly tends
to show that, on all hands, it was considered perfectly clear
at that time that a new trial might be granted in felony.
It may be well also to consider the cases as to a venire
de novo after a special verdict in felony, as the only
material difference between it and a new trial seems to be
that a venire de novo is only grantable for something that
appears on the face of the record, but a new trial may be
granted for a variety of causes in addition, which never
appear on the record. — 1 Chit. 654. It is clearly
settled that a venire de novo may be granted for error in
the proceedings, which is not upon the merits. As to a
venire de novo od the merits, in Tr afford v. R., 8.
PROCErUKE ACT. 1021
Greaves JfSS. note on new trials and venire de novo.
Bing. 204, a venire de novo was granted, because the
special verdict did not contain a sufficient finding of facts
to warrant the application of the rule that, at common law,
the land holders would have the right to raise the banks of
a river, from time to time, so as to confine the flood-water
within the banks. The court, therefore, must have con-
sidered the facts, and decided upon them. In R. v. Keite,
1 L. May m. 138, the question was whether a special
verdict showed that the prisoner was guilty of murder or
manslaughter. On the first argument Holt, C. J., said, "if
the verdict is imperfect, no judgment can be given, but a
venire de novo ought to issue " ; and Eyre, J., and Eokeby,
J., held the same. At the end of the second argument, no
judgment was given on the matter of law raised on the
special verdict; but Holt, C. J., took several exceptions to
the indictments, and they were quashed. In R. v. Bur-
tidge, 3 P. Wm. 499, Lord Hardwicke, C. J., said that
"a doubt seems to have arisen whether a venire de novo
could be awarded in a capital case ; to avoid this ques-
tion, Lord Holt took exceptions to the indictments." This
seems to be a misapprehension both as to their having been
any such doubt, and as to Lord Holt having tried to avoid
it ; there is not a word in the report to lead to either sup-
position, and it should be remembered that, in former
times, the judges quashed indictments for any objection
apparent to themselves ; and hence it was that any bar-
rister, as amiciK en riat had a right to point out any defect>
" to inform the justices, that they do not err." — 14 H. VII.
29. The dicta, therefore, of Lord Holt, C. J., and the other
two justices are unshaken ; and Traford x.R., is in accord-
ance with them; so also in Campbell x.R. " there is a solemn
decision of the Court of Queen's Bench, not reversed or
1022 PROCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
questioned, that a venire de novo will lie upon an imperfect
verdict " in felony : per Blackburn, J., R. v. Winsor, 14 L.
T. 203 ; 10 Cox, 276. It is clear that in every case of
a special verdict, the merits of the case are considered,
and if they are sufficiently stated, judgment on the one
side or the other is given, but if they are insufficiently
stated, a venire de novo must issue. In R. v. Sykes, T.
Raym. 202, in an information for perjury the record of
the trial, on which the perjury was committed, varied from
the statement of it in the information, and at the assizes, it
was found specially. It was held that the judges at the
trial ought to have determined it, and that a venire de
novo ought to issue. This case is a clear decision that a
venire de novo ought to issue upon the merits- It is just
like the case of admitting or rejecting evidence improperly,
which in civil cases is a ground for a venire de, novo :
Davies v. Pierce, 2 T. R. 125. And in Campbell v. R., 11
Q. B. 824, it was asserted that there is no distinction on this
point between criminal and civil cases. If then a venire
de novo can be granted on the merits in felony, it strongly
supports the powers of granting a new trial on the merits,
for the difference between the two really consists merely
in the form in which the question is brought before the
court.
A sort of vague notion seems to have existed that there
was some distinction between felony and misdemeanor on
these questions ; and the dictum of Lord Kenyon, C. J., in
R. v. Mawbey, referring to " a class of offences " " greater
than misdemeanors " may have given countenance to this
supposition. But any such distinction is clearly unfounded,
for there is no doubt, whatsoever, that in every case
of felony where there is any fatal formal defect, a new
PROCEDURE ACT. 1023
Greaves' MSS. note on new trials and venire de novo.
trial or a venire de novo (as the case may be) may be
granted exactly in the same way as in misdemeanors, and
it was well observed by Cockburn, C. J., in R. v. Winsor
with reference to E. v. Davison, 2 F. & F. 250, that " it
is very true that that was a case of misdemeanor, and this
is a case of felony ; but I can see no real distinction whatever
between the two classes of cases. The trial by jury is the
same, and the principles on which it is to be administered
are the same, whether the case is one of felony or misde-
meanor ; and I am utterly at a loss to see any distinction
that can exist in point of principle between the two
cases."
There is, however, one very important distinction in
favor of a prisoner charged with felony — the right to chal-
lenge jurymen peremptorily — which does not exist in mis-
demeanor, and this affords a strong argument for there
being at least as large a power to correct the errors of
jurors, on the merits, in cases of felony as in misdemeanors.
I have dealt thus fully with this question, because it
does seem to me most unreasonable that there should be
power to grant a new trial in misdemeanors, both on the
merits and for matters of form, and in felony also, for mat-
ters of form, but not on the merits ; in other words that
there should be no such power on the most momentous
questions on which the guilt or innocence of the prisoner
may turn, although it exists in the less important matters,
which in no way whatever bear on his guilt or innocence."
SPECIAL PROVISIONS.
269. Any judge, retired judge, or Queen's counsel, presiding at
any sittings of the High Court of Justice of Ontario, may reserve the
giving of his final decision on questions raised at the trial ; and his
decision, whenever given, shall be considered as if given at the time
of the trial.— 4(j V., c. 10, s. 1.
1024 PROCEDURE ACT.
270. The practice and procedure in all criminal cases and matters
whatsoever in the said High Court of Justice shall he the same as the
practice and procedure in similar cases and matters, before the
establishment of the said High Court. — 46 V., c. 10, s. 2.
271. If any general commission for the holding of a court of assize
and nisi prius, oyer and terminer or general gaol delivery, is issued by
the Governor General for any county or district in the Province of
Ontario, such commission shall contain the names of the justices of
the supreme court of judicature for Ontario, and may also contain
the names of the judges of any of the county courts in Ontario, and of
any of Her Majesty's counsel learned in the law, appointed for the
Province of Upper Cana la, or for the Province of Ontario, and if any
any such commission is for a provisional judicial district such com-
mission may contain the name of the judge of the district court of the
said district :
2. The said courts shall be presided over by one of the justices of
the said supreme court, or in their absence by one of such county
court judges or by one of such counsel, or in the case of the said
district by the judge of the said district court. — 46 V., c. 10, s. 4.
272. It shall not be necessary for any court of General Sessions
in the Province of Ontario to deliver the gaol of all prisoners who are
confined upon charges of simple larceny, but the court may leave any
such cases to be tried at the next court of oyer and terminer and
general gaol delivery, if, by reason of the difficulty or importance of
the case, or for any other cause, it appears to it proper so to do. — C. S.
V. C, c 17, s.8.
273. If any person is prosecuted in either division of the high
Court of Justice for Ontario, for any misdemeanor, by information
there filed or by indictment there found, or removed into such court
and appears therein in term time, in person, or in case of a corporation,
by attorney, to answer to such information or indictment, such defen-
dant, upon being charged therewith, shall not imparl to a following
term, but shall plead or demur thereto, within four days from the
time of his appearance ; and in default of his pleading or demurring
within four days as aforesaid, judgment may be enter3d against such
defendant for want of a plea.— C S. U. C, c.108, s. 1.
274. If such defendant appears to such information or indictment
by attorney, such defendant shall not imparl to a following term; but
a rule, requiring him to plead, may forthwith be given and served,
and a plea to such information or indictment may be enforced, or
PROCEDURE ACT. 1025
judgment in default may be entered, in the same manner as might
have been done formerly in cases in which the defendant had appeared
to such information or indictment by attorney in a previous term ;
but the court, or any judge thereof, upon sufficient cause shown for
that purpose, may allow further time for such defendant to plead or
demur to such information or indictment. — C. S. U- C, c. 108, s. 2.
275. If atiV prosecution for misdemeanor instituted by the Attorney
General for Ontario in the said court, is not brought to trial within
twelve months next after the plea of not guilty has been pleaded
thereto, the court in which such prosecution is depending, upon appli-
cation made on behalf of any defendant in such prosecution, of which
application twenty days previous notice shall be given to such
Attorney General, may make an order, authorizing such defendant to
bring on the trial of such prosecution ; and thereupon such defendant
may bring on such trial accordingly, unless a nolle prosequi is entered
to such prosecution. — C. S. U. C, c.108, s. 4.
276. In the Province of Nova Scotia a calendar of the criminal
cases shall be sent by the clerk of the Crown to the grand jury in each
term, together with the depositions taken in each case and the names
of the different witnesses, and the indictments shall not be made out,
except in Halifax, until the grand jury so directs. — R. S. N- S.
(3rd S.), c. 123, s. 17.
277. A judge of the supreme court of Nova Scotia may sentence
convicted criminals on any day of the sittings at Halifax, as well a< in
term time.— R. S. N. S. (3rdS.), c.171, s. 75.
GENERAL PROVISIONS.
278. The several forms in the schedules to this Act, or forms to
the like effect, shall be good, valid and sufficient in law, and the forms
of indictment contained in the second schedule to this Act mav be
used, and shall be sufficient as respects the several offences to which
they respectively relate ; and as respects offences not mentioned in
such second schedule, the said forms shall serve as a guide to show
the manner in which offences are to be charged, so as to avoid sur-
plusage and verbiage, and the averment of matters not necessary to
be proved, and the indictment shall be good if, in the opinion of the
court, the prisoner will sustain no injury from its being held to be so,
1026 PEOCEDUEE ACT.
and the offence or offences intended to be charged by it can be under-
stood from it.— 32-33 V., c. 29, s. 27; and c. 30, s. 66.
279. Nothing herein contained shall alter oraffect any of the laws
relating to the government of Her Majesty's land or naval forces. — 32-
33 V., c. 29, s. 137.
The enactment in section 278, so far as it relates to the
forms contained in the first schedule, is taken from the 11-12
V., c. 42, s. 28, Imp. The cases of Barnes v. White, 1 C. B.
192, in re Allison, 10 Ex. 561, R. v. Johnson, 8 Q. B.
102, and R. v. Sansome, 1 Den. 545, seem to support the
contention that where a statute gives a form it is suffi-
cient to follow it. In R v. Johnson, ubi supra, however,
it was said, by the judges, that a statutory form is
insufficient, if it does not give a complete description of
the offence.
In R. v. Kimber, 3 Cox, 223, the judges doubted if a
certain document under the Jervis act was sufficient
though ic had been drawn exactly in the form given by
the statute. In Egginton's Case, 5' E. <& B. 100, it
was held that if a form is given by a statute, it can be
followed. — So, in R. v. Bain, Ramsay's App. Cases 191,
for perjury; and R. v. Davis, 18 U.C. Q. B. 180, for false
pretences.
EEMAEKS ON FOEMS IN THE SECOND SCHEDULE.
Murder and Manslaughter. — Venue in the body of the
indictment unnecessary. S. 104, Procedure Act.
Bodily harm. — Venue unnecessary. — Indictment under
sec. 8, c. 162 need not aver " and did thereby cause bodily
harm." — But if it does " grievous bodily harm " are the
words of the section. — Then " with intent to commit mur-
der," or "with intent feloniously, wilfully and of his malice
aforethought to kill and murder *f are necessary.
See R. v. Carr, 26 L. C. J. 61.
PROCEDURE ACT. 1027
Rape. — Venue unnecessary. — Allegation that the wo-
man ravished was above twelve years of age, unnecessary.
Robbery. — This is a form under sec. 34 of the Larceny
Act, page 331, ante. It is entirely defective, even after
verdict.
Bu. rglary. — Word " burglariously " omitted, — The par-
ticular felony intended must also be specified. This form
bad, even after verdict. See remarks under sec. 38 of the
Larceny Act, p. 353, ante.
Stealing money. — Stealing money is simple larceny
under sec. 5 of the Larceny Act, p. 290, ante, and the form
given for simple larceny in this schedule covers it. Stealing
from the person is covered by sec. 32 of the Larceny Act,
p. 315, ante, and this form does not cover it. Stealing any
property or any money the value of which is over 8200 is
covered by sec. 86 of the Larceny Act, p. 457, ante, and
this form, if intended to fall under that section, should
allege that the sum of money stolen was of more than S200.
Embezzlement. — See proper form, p. 386, ante, under
sec. 52 of the Larceny Act.
False pretences. — What are the false pretences should
be set at full length.
See, p. 420, ante, remarks under sec. 77 of the Larceny
Act.
After verdict, an indictment was quashed for not stating
what the false pretences were. R. v. Mason, 2 T. R.
581. This decision was before the statute which enacts
that, after verdict, an indictment in the words of the statute
is sufficient.
In R. v. Goldsmith, 12 Cox, 479, it is said that the
question whether such an indictment, not stating what are
the false pretences, would be sufficient now, after verdict,
has not been raised. See R. v. Kelleher, 14 Cox, 48.
1028 PROCEDURE ACT.
In Ontario and Quebec, before the Consolidation Acts of
1869, sec. 35 of ch. 99, C. S. C. expressly dispensed
with the necessity of setting out the false pretences in all
indictments for obtaining by false pretences ; but this clause
has been repealed by the General Eepeal Act of 1869.
0 fences against the habitation. — -See proper form under
sec. 2 of c 168, p. 558, ante. — The word "unlawfully" is
wanting. The statutory offence is therefore not covered by
this form.
In R. v. Davis, 1 Leach, 493, the indictment averred
that the defendent unlawfully, maliciously &uA felonious-
ly did shoot, etc. The words of the statute creating the
offence charged were. " That if any person shall wilfully
and maliciously shoot he shall be guilty of felony."
As the word " wilfully " was not in the indictment, it was
held bad.
So in R. v. Cox, 1 Leach, 71, it was held that the term
" wilful " in a statute is a material description of the offence,
and that an indictment for such an offence must necessa-
rily aver that the act was " wilful" or done " wilfully. 1
" Quod voluit dixit, said Patteson, J., in R. v. Bent, 1
Ben. 157; if the Legislature has said that the doing such
an act wilfully shall be an offence, the indictment must
charge the defendant to have done it wilfully. That the
words of the statute must be pursued is a safe and certain
rule ; an inquiry whether other words have the same
meaning, must be precarious and uncertain.
So in R. v. Turner, 1 Moo. C. G. 239, it was held that
if a statute makes it criminal to do an act unlawfully and
maliciously, an indictment must state that it was done
unlawfully ; stating that it was done feloniously, volunta- j
rily and maliciously is not enough. So an indictment j
charging the prisoner with u feloniously, wilfully and
PROCEDURE ACT. 1029
maliciously " cutting, is defective, and judgment will be
arrested upon a verdict thereon, if the statute creating the
offence uses the word " unlawfully." — R. v. Ryan, 2 Moo.
C. C. 15; R. v. Lewis, 2 Russ. 1067.
Malicious injuries to property. — This form is under
sec. 4. of ch. 168 p. 562, ante. — The word " unlawfully''
is wanting. Also the words " with intent to defraud " or
" injure. p — Bad, even after verdict.
Forgery. — See general form, ante, p. 484, ante, for
forgery under statute, and p. 486, ante, for forgery at
common law, and under sec. 28 of Forgery Act, p. 512,
ante, for forgery of a promissory note.
Coining. — The words " intent to defraud " are a surplu-
sage in the count for counterfeiting under sec. 3. c. 167,
p. 537, ante. — The last part of this form is for a misde-
meanor under sec. 12 of c. 167, p. 544, ante, and is not
in the words of the statute.
Subornation of perjury. — The words " aforesaid upon
their oath aforesaid '' should be inserted after the words
" and the jurors." Each count is a separate presentment,
and every presentment must appear to be upon oath. — 1
Chit. 249 ; Archbold, 73.
Offences against the publicpeace. — This form is en-
tirely defective. It is under sec. 9 of c. 147, p. 35, ante,
and the words unlawfully and feloniously are omitted.
See proper form with that act, p. 36, ante.
0 fences against the administration of justice. — Thi3
form is presumed to cover the offence created by sec. 89 of
the Larceny Act, under which, p. 459, ante, see a proper
form.
The present one has not the word " feloniously." Then
it does not allege that the defendant has not used all due
diligence to cause the offender to be brought to trial.
1030 PROCEDURE ACT.
This is an exception, and a well established rule of
pleading directs that if there be an exception contained
in the same clause of an act creating an offence, the
indictment must show, negatively, that the defendant
does not come within the exception. — Archbold, 62.
Bigamy. — See form, p. 76, ante, under c. 161.
The two last counts in this form of the second schedule
are for offences under sees. 1 and 3 of that act.
Offences relating to the army. — This form is to cover
the offence created by sec. 1 of c. 169. — It is entirely
defective. — It should allege that the accused was not
an enlisted soldier in Her Majesty's service or a seaman
in Her Majesty's naval service. Then procuring a soldier
to desert is too general. His name must be given, if
known, or if unknown covered by the usual allegation
in such instances.
Offences against public morals. — Defective. — Under c.
157, s. 8, p. 71, ante. — See form in Archbold, 935. Sec.
140, Procedure Act, applies.
FIKST SCHEDULE.
(Not printed. The forms it contains apply to ss. 30
to 96 of the Procedure Act, relating to the procedure
before the magistrates.)
SECOND SCHEDULE.
FORMS OF INDICTMENT.
Murder.
County (or district) ) The Jurors for our Lady the Queen,
of , to wit : j upon their oath, present that A. B., on
the day of in the year , at in the county
(or district) of , did feloniously, wilfully, and of his malice
aforethought, kill and murder one C. D.
Manslaughter.
County (or district) "I Same as last form, omitting " wilfully
of , to wit : J and of malice aforethought," and sub-
stituting the word " slay "for the icord " murder."
Bodily Harm.
County (or district) ) The Jurors for our Lady the Queen
of , to wit: j upon their oath, present that J. B., on
the , day of , at , did feloniously administer
to (or cause to be taken by) one A. B., poison (or other des-
tructive thing) and did thereby cause bodily harm to the said
A. B., with intent to kill the said A. B. (or C. D.)
Rape.
County (or district) ) The Jurors for our Lady the Queen,
of , to wit : ) upon their oath, present that A. B., on
the day of , at , by force and against her
will, feloniously ravished and carnally kaew C. D., a woman
above the age of twelve years.
Simple Larceny.
County (or district) ") The Jurors for our Lady the Queen,
of , to wit : J upon their oath, present that A. B., on
the day of , at , did feloniously steal a gold
xcatch, the property of C. D.
1032 PROCEDURE ACT.
Robbery.
County (or district) ) The Jurors for our Lady the Queen,
of , to wit : } upon their oath, present that A. B., on
the day of , at , did feloniously rob C. D
(and at the time of, or immediately before or after such robbery
(if the case is so), did cause grievous bodily harm to the said
C. D.), (or to any person, naming him.)
Burglary.
County (or district) ") The Jurors for our Lady the Queen,
of , to wit: { upon their oath, present that A. B., on
the day of , at , did feloniously break into
and enter the dwelling-house of C. D., in the night-time, with
intent to commit a felony therein (or as the case may be.)
Stealing Money.
County (or district) } The Jurors for our Lady the Queen,
of , to wit : j upon tbeir oath, present that A. B., on
the day of , at , did feloniously steal a certain
sum of money, to wit, to the amount of dollars, the property
of one C. D. (or as the case may be.)
Embezzlement.
County (or district) \ The Jurors for our Lady the Queen,
of , to wit : J upon their oath, present that A. B., on
the day of , at , being a servant (or clerk)
then employed in that capacity by one C. D., did then and there,
in virtue thereof, receive a certain sum of money, to wit, the
amount of , for and on account of the said C. D., and the
said money did feloniously embezzle.
False Pretences.
County (or district) ) The Jurors for our Lady the Queen,
of , to wit : } upon their oath, present that A. B., on
the day of , at , unlawfully, fraudulently and
knowingly, by false pretences, did obtain from one C. D., six
yards of muslin, of the goods and chattels of the said C. D.,
with intent to defraud.
PROCEDURE ACT, 1033
Offences against the Habitation.
County (or district) ) The Jurors for our Lady the Queen,
of , to wit : ) upon their oath, present that A. B., on
the day of , at , did feloniously and maliciously
set fire to the dwelling-house of C. D., the said C. D. (or some
other person by name, or if the name is unknown), some person
being therein.
Malicious Injuries to Property.
County (or district) ) The Jurors for our Lidy the Queen,
of , to wit : j upon their oath, present that A. B., on
the day of , at , did feloniously and maliciously
set fire, or attempt to set fire, to a certain building or erection,
that is to say (a house or barn or bridge, or as the case may be,)
the property of one C. D. (or as the case may be).
Forgery.
County (or district) ") The Jurors for our Lady the Queen,
of , to wit : \ upon their oath, present that A. B., on
the , day of , at , did feloniously forge (or
utter, knowing the same to be forged) a certain promissory note,
&c. (or clandestinely and without the consent of the owner, did
make an alteration in a certain written instrument with intent to
defraud, or as the case may be).
Coining,
County (or district) ") The Jurors for our Lady the Queen,
of , to wit : J upon their oath, present that A. B., on
the day of , at , did feloniously counterfeit a
gold coin of the United Kingdom, called a sovereign, current by
law in Canada, with intent to defraud, (or had in his
possession a counterfeit of a gold coin of the United Kingdom,
called a sovereign, current by law in Canada, knowing the same
to be counterfeit, and with intent to defraud by uttering the
same.)
Perjury.
County (or district) ") The Jurors for our Lady the Queen,
of , to wit : J upon their oath, present that heretofore,
1034 PROCEDURE ACT.
to wit, at the (assizes') hoi den for the county (or district)
of , on the day of , before (one of the judges
of our Lady the Queen), a certain issue between one E. F. and
one J. H., in a certain action of covenant, was tried, upon which
trial A. B. appeared as a witness for and on behalf of the said
E. F., and was then and there duly sworn before the said
and did then and there, upon his oath, aforesaid, falsely, wilfully
and corruptly depose and swear in substance and to the effect
following, " that he saw the said G. H. duly execute the deed
on which the said action was Drought," whereas, in truth, the
said A. B. did not see the said G. H. execute the said deed, and
the said deed was not executed by the said Gr. H., and the said
A. B. did thereby commit wilful and corrupt perjury.
Subornation of Perjury.
County (or district) \ Same as last form to the end, and then
of , to wit : } proceed : — And the jurors further present,
that before the committing of the said offence by the said A. B.,
to wit, on the day of , at , C. D., unlawfully,
wilfully and corruptly did cause and procure the said A. B. to
do and commit the said offence in manner and form aforesaid.
Offences against the Public Peace.
County (or district) \ The Jurors for our Lady the Queen,
of , to wit : j upon their oath, present that A. B., on
the day of , at , with two or more persons,
did riotously and tumultuously assemble together to the disturb-
ance of the public peace, and with force did demolish, pull down
or destroy (or attempt or begin to demolish, &c), a certain
building or erection of C. D.
Offences against the Administration of Justice.
County (or district) \ The Jurors for our Lady the Queen,
of , to wit : — J upon their oath, present that A. B., on
the , day of , at , did corruptly take or receive
money under pretence of helping C. D. to a chattel (or money,
&c), that is to say, a horse (or five dollars, or a note, or a
carriage), which had been stolen (or as the case may be).
PROCEDUEE ACT. 1035
Bigamy or offences against the Law for the Solemnization
of Marriage.
County (or district) ) The Jurors for our Lady the Queen,
of , to wit : J upon their oath, present that A. B., on
the day of , at , being then married, did
feloniously marry C. D. during the lifetime of the wife of the
said A. B. — (or not being duly authorized, did solemnize or
assist in the solemnization of) a marriage between C. D. and E.
F., or being duly authorized to marry, did solemnize marriage
between C. D. and E. F. before proclamation of banns according
to law, or without a license for such marriage under the hand and
seal of the Governor.)
Offences relating to the Army.
County (or district) ) The Jurors for our Lady the Queen,
of , to wit : j upon their oath, present that A. B., on
the day of , at , did solicit (or procure a
soldier to desert the Queen's service (or as the case may be).
Offences against Public Morals and Decency.
County (or district) | The Jurors for our Lady the Queen,
of , to wit : J upon their oath, present that A. B., on
the day of , at , did keep a common gaming,
bawdy or disorderly house (or rooms).
General Form,.
County (or district) \ The Jurors for our Lady the Queen,
of , to wit: J upon their oath, present that A. B., on
the day of , at , did (here describe the offence
in the terms in which it is described in the law, or state such facts
as constitute the offence intended to be charged, and if the offence
is felony, state the act to have been done feloniously .)
1036 PROCEDURE ACT.
THIRD SCHEDULE.
Whereas at (stating the session of the court before which the
person was convicted,) held for the county (or united counties)
of , on before A. B., late of , having
been found guilty of felony, and judgment thereon given, that
(state the substance,) the court before whom he was tried re-
served a certain question of law for the consideration of the
justices of (name of court), and execution was thereupon respited
in the meantime (as the case may be) : This is to certify that
the justices of (name of court) having met at in
term (or as the case may be), it was considered by the said
justices there, that the judgment aforesaid should be annulled,
and an entry made on the record, that the said A. B. ought not,
in the judgment of the said justices, to have been convicted of
the felony aforesaid ; and you are therefore, hereby required
forthwith to discharge the said A. B. from your custody.
(Signed), E. F.
Clerk of (as the case may be.)
To the sheriff of , and
the g;ioler of , and all
others whom it may concern.
32-33 V., c. 29, sch. A, and c. 30, sch.;—C. S. U. C, c. 112,
sch. ; —C. S. L. C, c. 77, sch. A.; —R. S. N. S. (3rd S.), c.
171, sch. ;— 1 R. S. NT. B., Title XL, and sch., Form (U.)
CHAPTER 179.
AN ACT RESPECTING RECOGNIZANCES.
HER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : — •
1. Any surety for any person charged with any indictable offence
may, upon affidavit showing the grounds therefor, with a certified
copy of the recognizance, obtain from a judge of a superior court or
from a judge of a county court having criminal jurisdiction, an order
in writing under his hand, to render such person to the common gaol
of the county where the offence is to be tried. — 1 R. S. Ar. B., c.
157, s. 1.
2. The sureties, under such order, may arrest such person, and
deliver him, with the order, to the gaoler named therein, who shall
receive and imprison him in the said gaol, and shall be charged with
the keeping of such person until he is discharged by due course of
law.— 1 R. S. N. B-, c 157, s. 2.
3. The person rendered may apply to a judge of a superior court, or
in cases in which a judge of a county court may admit to bail, to a
judge of a county court, to be again admitted to bail, who may on
examination allow or refuse the same, and make such order as to the
number of the sureties and the amount of recognizance as he deems
meet, — which order shall be dealt with in the same manner as the
first order for bail, and so on, as often as the case requires. — 1 R. S.
N. B., c. 157, s. 3.
4. On due proof of such render, and certificate ofthe sheriff, proved
by the affidavit of a subscribing witness, that such person has been
so rendered, a judge of the superior or county court, as the case may
be, shall order an entry of such render to be made on the recognizance
by the officer in charge thereof, which shall vacate the recognizance,
and may be pleaded or alleged in discharge thereof. — 1 R. S. N. B.,
c 157, s. 4.
5. Tlie sureties may bring the person charged as aforesaid into the
court at which he is bound to appear, during the sitting thereof, and
then, by leave of the court, render him in discharge of such recogni-
zance at any time before trial, and such person shall be committed to
1038 AN ACT RESPECTING RECOGNIZANCES.
gaol, there to remain until discharged by due course of law ; but such,
court may admit such person to bail for his appearance at any time it
deems meet. — 1 E. S. N. B., c. 157, s. 5.
6. The arraignment or conviction of any person charged and bound
as aforesaid shall not discharge the recognizance, but the same shall
be effectual for his appearance for trial or sentence, as the case may
be ; and the court may commit such person to gaol upon his arraign-
ment or trial, or may require new or additional sureties for his
appearance for trial or sentence, as the case may be, notwithstanding
such recognizance ; and such commitment shall be a discharge of the
sureties.— 1 R. S. N. B., c. 157, s. 6.
7. Nothing in the foregoing provisions shall limit or restrict any
right which a surety now has of taking and rendering to custody any
person charged with any such offence, and for whom he is such surety,
8. Unless otherwise provided, all fines, issues, amercements and
forfeited recognizances, the disposal of which is within the legislative
authority of the Parliament of Canada, set, imposed, lost or forfeited
before any court of criminal jurisdiction, shall, within twenty-one days
after the adjournment of such court be fairly entered and extracted
of a roll by the clerk of the court, or in case of his death or absence
by any other person, under the direction of the judge who presided at
such court, which roll shall be made in duplicate and signed by the
clerk of the court, or in case of his death or absence, by such judge :
2. If such court is a superior court of criminal jurisdiction, one of
such rolls shall be filed with the clerk, prothonotary, registrar or
other proper officer, —
(a.) In the Province of Ontario, of a division of the high court of
justice, —
(6.) In the Provinces of Nova Scotia, New Brunswick and British
Columbia, of the supreme court of the Province, —
(c.) In the Province of Prince Edward Island, of the supreme court
of judicature of that Province, —
(d.) In the Province of Manitoba, of the Court of Queen's Bench of
that Province and, —
(e.) In the North- West Territories, of the supreme court of the said
Territories, —
On or before the first day of the term next succeeding the court by
or before which such fines or forfeitures were imposed or forfeited :
3. If such court is a court of General Sessions of the Peace, or a
county court, one of such rolls shall remain deposited in the office of
the clerk of such court.— C. S. U. C, c. 117, ss. 1 and 2, part, 3 and
4, part. 49 V., c. 25, s. 14. 3 Geo. 4, c. 46, s. 2, Imp.
AN ACT RESPECTING RECOGNIZANCES. 1039
9. The other of such rolls shall, as soon as the same is prepared,
he sent by the clerk of the court making the same, or in case of his
death or absence, by such judge as aforesaid with a writ of fieri facias
and capias, according to the form in the schedule to this Act, to the
sheriff of the county in and for which such court was holden ;
and such writ shall be authority to the sheriff for proceeding to
the immediate levying and recovering of such fines, issues,
amercements and forfeited recognizances, on the goods and
chattels, lands and tenements of the several persons named
therein, or for taking into custody the bodies of such persons respec-
tively, in case sufficient goods and chattels, lands or tenements cannot
be found, whereof the suras required can be made ; and every person
so taken shall be lodged in the common gaol of the county, until satis-
faction is made, or until the court into which such writ is return-
able, upon cause shown by the party, as hereinafter mentioned, makes
an order in the case, and until such order has been fully complied
with.— C. S. U. C,c 117, ss. 2, part, 4 part, and 5. 3 Geo. 4, c 46, s.
2, Imp.
10. If any person bound by recognizance for his appearance (or for
whose appearance any other person has become so bound) to prose-
cute or give evidence in any case of felony or misdemeanor , or to
answer for any common assault, or to articles of the peace, makes
default, the officer of the court by whom the estreats are made out
shall prepare a list in writing, specifying the name of every person
so making default, and the nature of the offence in respect of which
such person, or his surety, was so bound, together with the residence,
trade, profession or calling of every such person and surety, and
shall , in such list, distinguish the principals from the sureties, and
shall state the cause, if known, why each such person did not appear,
aud whether, by reason of the non-appearance of such person, the
ends of justice have been defeated or delayed. — C. S. C, c. 99, s. 120.
7 Geo. 4, c. 64, s. 31, Imp.
11. Every such officer shall, before any such recognizance is estreat-
ed, lay such list before the judge or one of the judges who presided
at the court, or if such court was not presided over by a judge, before
two justices of the peace who attended at such court, and such judge
or justice shall examine such list, and make such order touching the
estreating or putting in process any such recognizance as appears
just, subject, in the Province of Quebec, to the provisions hereinafter
contained ; and no officer of any such court shall estreat or put in
process any such recognizance without the written order of the judge
1040 AN ACT RESPECTING RECOGNIZANCES.
or justices of the peace before whom respectively such list has been
laid— C. S. a, c. 99, s. 121. 7 Geo. 4, c. 64, s. 31, Imp.
12. Except in the cases of persons bound by recognizance for their
appearance, or for whose appearance any other person has become
bound to prosecute or give evidence in any case of felony or misdemea-
nor, or to answer for any common assault, or to articles of the peace,
in every case of default whereby a recognizance becomes forfeited, if
the cause of absence is made known to the court in which the person
was bound to appear, the court, on consideration of such cause, and
considering also, whether, by the non-appearance of such person the
ends of justice have been defeated or delayed, may forbear to order the
recognizance to be estreated; and, with respect to all recognizances
estreated, if it appears to the satisfaction of the judge who presided at
such court that the absence of any person for whose appearance any
recognizance was entered into, was owing to circumstances which
rendered such absence justifiable, such judge may make an order
directing that the sum forfeited upon such estreated recognizance
shall not be levied. — C. S. U. C, c. 117, s. 6, part.
13. The clerk of the court shall, for such purpose, before sending
to the sheriff any roll, with a writ of fieri Jacias and capias, as direc-
ted by this act, submit the same to the judge who presided at the
court, and such judge may make a minute on the said roll and writ of
any such forfeited recognizances and fines as he thinks fit to direct not
to be levied ; and the sheriff shall observe the direction in such minute
written upon such roll and writ, or indorsed thereon, and shall forbear
accordingly to levy any such forfeited recognizance or fine. — C. S. U,
C,c. 117,s.7.
14. If upon any writ issued under this act, the sheriff takes lands
or tenements in execution, he shall advertise the same in like man-
ner as he is required to do before the sale of lands in execution in
other cases ; and no sale shall take place in less than twelve months
from the time the writ came to the hands of the sheriff. — C- S. V. C,
c. 117, s. 8.
15. The clerk of the court shall, at the foot of each roll made out
as herein directed, make and take an affidavit in the following form,
that is to say : —
•* I. A. B. (describing his office), make oath that this roll is truly
"and carefully made up and examined, and that all fines, issues,
"amercements, recognizances and forfeitures which were set, lost
" imposed or forfeited, at or by the court therein mentioned, and which,
AN ACT RESPECTING RECOGNIZANCES. 10 1
■ in right and due course of law, ought to be levied and paid, are, to
"the best of my knowledge and understanding, inserted in the said
"roll; and that in the said roll are also contained and expressed all
" such fines as have been paid to or received by me, either in court or
" otherwise, without any wilful discharge, omission, misnomer or defect
" whatsoever. So help me God ;"
Which oath any justice of the peace for the county is hereby autho-
rized to administer. — C. S. U- C, c 117, s. 9. 3 Geo. 4, c. 46, *. 3,
Imp.
16. If any person on whose goods and chattels a sheriff, bailiff or
other officer is authorized to levy any such forfeited recognizance,
gives security to the said sheriff or other officer for his appearance
at the return day mentioned in the writ, in the court into which such
writ is returnable, then and there to abide the decision of such court
and also to pay such forfeited recognizance, or sum of money to be
paid in lieu or satisfaction thereof, together with all such expenses as
are adjudged and ordered by the court, such sheriff or officer shall
discharge such person out of custody; and if such person does not
appear in pursuance of his untertaking, the court may forthwith issue
a writ of fieri facias and capias against the surety or sureties of the
person so bound as aforesaid. — C. S. U. C, c. 117, s. 10 ; 3 Geo. 4, c.
46, s. 5, Imp.
17. The court into which any writ of fieri facias and capias, issued
under this act, is returnable, may inquire into the circumstances of
the case, and may, in its discretion, order the discharge of the whole of
the forfeited recognizance, or sum of money paid or to be paid in lieu
or satisfaction thereof, and make such order thereon as to such court
appears just ; and such order shall accordingly be a discharge to the
sheriff, or to the party, according to the circumstances of the case.
— C. S. U. C, c. 117, s. 11 ; 3 Geo. 4, c. 46, 6, Imp.
18. The sheriff, to whom any writ is directed under this act, shall
return the same on the day on which the same is made returnable
and shall state, on the back of the roll attached to such writ, what
has been done in the execution thereof; and such return shall be filed
in the court into which such return is made. — C. S. U. C, c. 117, s.
12 ; 3 Geo. 4, c. 46, s. 8, Imp.
19. A copy of such roll and return, certified by the clerk of the
court into which such return is made, shall be forthwith transmitted
to the Minister of Finance and Receiver General, with a minute thereon
RRR
1042 AN ACT RESPECTING RECOGNIZANCES.
of any of the sums therein mentioned, which have been remitted by
order of the court, in whole or in part, or directed to be forborne,
under the authority of this act.— C- S. IF. C-, c. 117, s. 13.
20. The sheriff or other officer shall, without delay, pay over all
moneys collected under this act by him to the Minister of Finance
and Receiver General, or other person entitled to receive the same.
— a s. u. a, c. in, s. u.
QUEBEC.
21. The provisions of sections eight and nine and of twelve to
nineteen, both inclusive, shall not apply to the Province of Quebec,
and the following provisions shall apply to that Province only.
22. Whenever default is made in the condition of any recogni-
zance lawfully entered into or taken in any criminal case, proceeding
or matter, in the Province of Quebec, within the legislative authority
of the Parliament of Canada, so that the penal sum therein mentioned
becomes forfeited and due to the Crown, such recognizance shall
thereupon be estreated or withdrawn from any record or proceeding in
which it then is or a certificate or minute of such recognizance, under
the seal of the court, shall be made from the records of such court
where the recognizance has been entered into orally in open court :
2. Such recognizance, certificate or minute, as the case may be,
shall be transmitted by the court, recorder, justice of the peace, ma-
gistrate or other functionary before whom the cognizor, or the
principal cognizor, where there is a surety or sureties, was
bound to appear, or to do that, by his default to do which the con-
dition of the recognizance is broken, to the superior court in the
district in which the place where such default was made is included
for civil purposes, with the certificate of the court, recorder, justice
of the peace, magistrate or other functionary as aforesaid, of the
breach of the condition of such recognizance, of which and of the
forfeiture to the crown of the penal sum therein mentioned, such cer-
tificate shall be conclusive evidence :
3. The date of the receipt of such recognizance or minute and cer-
tificate by the prothonotary of the said court shall be indorsed there-
on by him, and he shall enter judgment in favor of the crown against
the cognizor for the penal sum mentioned in such recognizance, and
execution may issue therefor after the same delay as in other cases,
which shall be reckoned from the time when the judgment is entered
by the prothonotary of the said court:
AN ACT RESPECTING RECOGNIZANCES. 1043
4. Such execution shall issue upon fiat or prcecipe of the Attorney
Genera!, or of any person thereunto authorized in writing by him;
and the crown shall be entitled to the costs of execution and to costs
on all proceedings in the case subsequent to execution, and to such
costs for the entry of the judgment, as are fixed by any tariff:
5. Nothing in this section contained shall prevent the recovery of
the sum forfeited by the breach of any recognizance from being
recovered by suit in the manner provided by law, whenever the same
cannot, for any reason, be recovered in the manner provided in this
section :
6. In such case, the sum forfeited by the non-performance of the
conditions of such recognizance shall be recoverable, with costs, by
action in any court having jurisdiction in civil cases to the amount, at
the suit of the Attorney General of Canada or of Quebec, or other
person or officer authorized to sue for the crown ; and in any such
action it shall be held that the person suing for the crown is duly
empowered so to do, and that the conditions of the recognizance were
not performed, and that the sum therein mentioned is, therefore, due
to the crown, unless the defendant proves the contrary :
7. In this section, unless the context otherwise requires, the expres-
sion " cognizor " includes any numbeKof cognizors in the same recog-
nizance, whether as principals or sureties. — C. S. L. C, c. 106, s. 2.
23. When a person has been arrested in any district for a crimeor
offence committed within the limits of the Province of Quebec, and a
justice of the peace has taken recognizances from the witnesses heard
before him or another justice of the peace, for their appearance at the
next session or term of the court of competent criminal jurisdiction,
before which such person is to undergo his trial, there to testify and
give evidence on such trial, and such recognizances have been trans-
mitted to the office of the clerk of such court, the said court may pro-
ceed on the said recognizances in the same manner as if they had
been taken in the district in which such court is held. — C. S. L. C-
c 106, s. 1.
SCHEDULE.
FORM.
Victoria, by the Grace of God, etc.
To the sheriff of , Greeting :
You are hereby commanded to levy of the goods and chattels,
lands and tenements, of all and singular, the persons mentioned
in the roll or extract to this writ annexed, all and singular the
debts and sums of money upon them severally imposed and
charged, as therein is specified ; and if any of the said several
debts cannot be levied, by reason that no goods or chattels, lands
or tenements can be found belonging to the said persons, respec-
tively, then, and in all such cases, that you take the bodies of such
persons, and keep them safely in the gaol of your county, there
to abide the judgment of our court (as the case may be), upon
any matter to be shown by them, respectively, or otherwise to
remain in your custody as aforesaid, until such debt is satisfied,
unless any of such persons respectively gives sufficient security
for his appearance at the said court, on the return day hereof, for
which you will be held answerable , and what you do in the
premises make appear before us in our court (as the case may
be), on the day of term next, and have then and
there this writ. Witness, etc., A. B., clerk (as the case may be).
— C. 8. U. C., c 117, sch.
The mere failure of the party to answer, when called, in
the term subsequent to that in which he was arraigned
could not operate as a forfeiture of his bail. The Atty.
General v. Beaulieu, 3 L. C. J. 17.
On an information against the t ,il or surety of a person
charged with subornation of perjury, held, that after the
accused has pleaded guilty to an indictment, no default
can be entered against him, except on a day fixed for his
AN ACT RESPECTING RECOGNIZANCES. 1045
appearance, and that it is the duty of the court to estreat
the recognizances in cases like the present. — R. v. Croteau,
9 L. G. R. 67.
A recognizance taken before a police magistrate under
32-33 V., c. 30, s. 44, D., omitted the words " to owe : "
Held, fatal, and that an action would not lie upon the
instrument as a recognizance. — R. v. Hoodless, 45 U. G.
Q. B. 556.
Held, that the forfeiture of a recognizance to appear was
a debt sufficient to support the application for an attach-
ment under the Absconding Debtor's Act, and that such
writ may be granted at the suit of the crown, where the
defendant absconds to avoid being arrested for a felony. —
R. v. Stewart, 8 P. R. Ont 297.
A recognizance of bail put in on behalf of a prisoner,
recited that be had been indicted at the court of general
sessions of the peace for two separate offences, and the
condition was, that he should appear at the next sitting of
said court, and plead to such indictment as might be found
against him by the grand jury ; at the next of said sittings,
the accused did not appear, and no new indictment was
found against him : — Held, that the recitals sufficiently
showed the intention to be that the accused should appear
and answer the indictments already found, and that an
order estreating the recognizance was properly made. —
Re Gauthreaux's Bail, 9.P. R. Ont. 31.
Held, that on the return of a writ of certiorari a
recognizance is unnecessary. — R. v. Nunn, 10 P. R.
Ont 395.
Held, that since the passing of the Dominion statute, 49
V., c. 49, s. 8, there is no longer necessity for a defendant
on removal by certiorari of a conviction against him to
enter into recognizances as to costs as formerly required. —
R. v. Swahvell, 12 0. R. 391.
CHAPTER 180.
AN ACT RESPECTING FINES AND FORFEITURES.
TTER Majesty, by and with the advice and consent of the Senate
•*--*-. and House of Commons of Canada, enacts as follows : —
1. Whenever any pecuniary penalty or any forfeiture is imposed
for any violation of any act, and no other mode is prescribed for the
recovery thereof, such penalty or forfeiture shall be recoverable or
enforceable, with costs, by civil action or proceeding at the suit of Her
Majesty only, or of any private party suing as well for Her Majesty
as for himself — in any form allowed in such case by the law of that
Province in which it is brought — before any court having jurisdiction
to the amount of the penalty in cases of simple contract— upon the
evidence of any one credible witness other than the plaintiff or party
interested ; and if no other provision is made for the appropriation of
any penalty or forfeiture so recovered or enforced, one moiety shall
belong to Her Majesty; and the other moiety shall belong to the
private party suing for the same, if any, and if there is none, the
whole shall belong to Her Majesty. — 31 V., c 1, s. 7, part.
2. Whenever no other provision is irade by any law of Canada for
the application of any fine, penalty or forfeiture imposed for the
violation of any such law, the same shall belong to the Crown for the
public uses of Canada. — 49 V-, c 48, s. 1.
3. The Governor in Council may, from time to time, direct that any
fine, penalty or forfeiture, or any portion thereof, which would other-
wise belong to the crown for the public uses of Canada, be paid to
any provincial, municipal or local authority, which wholly or in part
bears the expenses of administering the law under which such fine,
penalty or forfeiture is imposed, or that the same be applied in any
other manner deemed best adapted to attain the objects of such law
and to secure its due administration. — 49 V., c 48, s. 2.
4. Any duty, penalty or sum of money, or the proceeds of any
forfeiture, which is, by any act, given to the crown, shall, if no other
provision is made respecting it, from part of the Consolidated Revenue
Fund of Canada, and shall be accounted for and otherwise dealt with
accordingly. — 31 V., c. 1, s- 7, part.
FINES AND FORFEITURES. 1047
5. No action, suit or information shall be brought or laid for any
penalty or forfeiture under any act, except within two years after the
cause of action arises, or after the offence is committed, unless the
time is otherwise limited by such act- — C. S- 17. C, c. 78, s. 7, part,
C. S. L. C, c. 108, *. I, part, and s. 2. 29 F. (AT. S.) c. 12, s. 15,
part 1 S. S. K B, c HO, s, 2,
CHAPTER 181.
AN ACT RESPECTING PUNISHMENTS, PARDONS
AND THE COMMUTATION OF SENTENCES.
H
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
PUNISHMENTS.
1. Whenever a person doing a certain act is declared to be guilty
of any offeuce.. and to be liable to punishment therefor, it shall be
understood that such person shall only be deemed guilty of such
offence and liable to such punishment after being duly convicted of
such act. — 32-33 V., c. 29, s. I, part.
2. Whenever it is provided that the offender shall be liable to
different degrees or kinds of punishment, the punishment to be inflicted
shall, subject to the limitation contained in the enactment, be in the
discretion of the court or tribunal before which the conviction takes
place.— 32-33 V., c 29, s. 1, part.
3. Whenever any offender is punishable under two or more acts or
two or more sections of the same act, he may be tried and punished
under any of such acts or sections ; but no person shall be twice
punished for the same offence. — 32-33 V., c. 20, ss. 40, part and 41,
part, and c. 21, s. 90, part. 36 V., c. 55, s. 33. 40 V., c. 35, s. 6.
CAPITAL PUNISHMENT.
4. Every one who is indicted as principal or accessory for any
offence made capital by any statute, shall be liable to the same punish-
ment, whether he is convicted by verdict or on confession. — 32-33 V.,
c. 29, s- 82.
5. In all cases of treason, the sentence or judgment to be pro-
nounced against any person convicted and adjudged guilty thereof
shall be, that he be hanged by the neck until he is dead. — 31 V., c.
69, a. 4. 54 Geo. 3., c 46, s. 1, Imp.
6. Upon every conviction for murder, the court shall pronounce
sentence of death, and the same may be carried into execution, and all
other proceedings upon such sentence and in respect thereof may be
PUNISHMENTS, PARDONS, ETC. 1049
had and taken in the same manner, and the court before which the
conviction takes place shall have the same powers in all respects as
after a conviction for any other felony for which a prisoner may be
sentenced to suffer death as a felon.— 32-33 V., c. 20, s. 2. 24-25 V.t
c. 100, s. 2, Imp.
7. Whenever any offender has been convicted before any court of
criminal jurisdiction, of an offence for which such offender is liable to
and receives sentence of death, the court shall order and direct
execution to be done on the offender in the manner provided by law. —
32-33 V., c 29, s. 106.
8. In the case of any prisoner sentenced to the punishment of
death, the judge before whom such prisoner has been convicted shall
forthwith make a report of the case to the Secretary of State, for the
information of the Governor General ; and the day to be appointed
for carrying the sentence into execution shall be such as, in the
opinion of the judge, will allow sufficient time for the signification of
the Governor's pleasure before such day ; and if the judge thinks such
prisoner ought to be recommended for the exercise of the Royal
mercy, or if, from the non-decision of any point of law reserved in
the case, or from any other cause, it becomes necessary to delay the
execution, he, or any other judge of the same court, or who might
have held or sat in such court, may, from time to time, either in term
or in vacation, reprieve such offender for such period or periods
beyond the time fixed for the execution of the sentence as are neces-
sary for the consideration of the case by the crown. — 32-33 V^ c 29,
8. 107. 36 F.,c.3, s. 1.
A judgment may be altered at any time during the
assizes ; and a reprieve may be granted or taken off by a
judge, although the sessiou be adjourned or finished, and
this, by reason of common usage. — 2 Hale, 412 ; Dyer,
205.
9. Every one who is sentenced to suffer death shall, after judgment,
be confined in some safe place within the prison, apart from all other
prisoners ; and no person except the gaoler and his servants, the
medical officer or surgeon of the prison, a chaplain or a minister of
religion, shall have access to any such convict, without the permis-
sion, in writing, of the court or judge before whom such convict has
been tried, or of the sheriff.— 32-33 V., c. 29, s. 108.
10. Judgment of death to be executed on any prisoner shall be
1050 PUNISHMENTS, PARDONS, ETC.
carried into effect within the walls of the prison in which the offender
is confined at the time of execution. — 32-33 V., c. 29, s. 109.
11. The sheriff charged with the execution, and the gaoler and
medical officer or surgeon of the prison, and such other officers of the
prison and such persons as the sheriff requires, shall be present at
the execution.— 32-33 V., c. 29, s. 110.
12. Any justice of the peace for the district, county or place to
which the prison belongs, and such relatives of the prisoner or other
persons as it seems to the sheriff proper to admit within the prison for
the purpose, and any minister of religion who desires to attend, may
also be present at the execution. — 32-33 V., c. 29, s. 111.
13. As soon as may be after judgment, of death has been executed
on the offender, the medical officer or surgeon of the prison shall
examine the body of the offender, and shall ascertain the fact of
death, and shall sign a certificate thereof, and deliver the same to the
sheriff.— 32-33 V., c 29, s. 112.
14. The sheriff and the gaoler of the prison, and such justices and
other persons present, if any, as the sheriff requires or allows, shall
also sign a declaration to the effect that judgment of death has been
executed on the offender. — 32-33 V., c. 29, s. 113.
15. The duties imposed upon the sheriff, gaoler, medical officer or
surgeon by the four sections next preceding, may and shall, in his
absence, be performed by his lawful deputy or assistant, or other
officer or person ordinarily acting for him, or conjointly with him, in
the performance of his duties. — 32-33 V., c. 29, s. 114.
16. A coroner of the district, county or place to which the prison
belongs, wherein judgment of death is executed on any offender, shall
within twenty-four hours after the execution, holi an inquest on the
body of the offender; and the jury at the inquest shall inquire into
and ascertain the identity of the body, and whether judgment of death
was duly executed on the offender ; and the inquisition shall be in
duplicate, and one of the originals shall be delivered to the sheriff. —
32-33 F., c 29,*. 115.
17. No officer of the prison or prisoner confined therein shall, in
any case, be a juror on the inquest. — 32-33 V., c. 29, s. 116.
18. The body of every offender executed shall be buried within the
walls of the prison within which judgment of death is executed on
him, unless the Lieutenant Governor in Council, being satisfied that
PUNISHMENTS, PARDONS, ETCJ 1051
there is not, within the walls of any prison, sufficient space for the
convenient burial of offenders executed therein, permits some other
place to be used for the purpose. — 32-33 V., c. 29, s. 117.
19. Every one who knowingly and wilfully signs any false certi-
ficate or declaration required with respect to any execution, is guilty
of a misdemeanor, and liable to imprisonment for any term less than
two years— 32-33 V., c. 29, s. 120.
20. Every certificate and declaration, and a duplicate of the inquest
required by this act, shall, in every case, be sent with all convenient
speed by the sheriff to the Secretary of State, or to such other officer
as is, from time to time appointed for the purpose by the Governor in
Council ; and printed copies of such several instruments shall, as soon
as possible, be exhibited, and shall, for twenty-four hours at least, be
kept exhibited on or near the principal entrance of the prison within
which judgment of death is executed. — 32-33 Y., c. 29, s. 121.
21. The omission to comply with any provision of the preceeding
eections of this act shall not make the execution of judgment of death
illegal in any case in which such execution would otherwise have been
legal.— 32-33 V., c.29, s. 123.
22. Except in so far as is hereby otherwise provided, judgment of
death shall be carried into effect in the same manner as if this act had
not been passed.— 32-33 V., c. 29, s. 124.
The Imperial Act on capital executions is 31 V., c. 24.
Of course, when possible, it seems better that the
sentence of death, and, in fact, any sentence, be passed by
the judge who held the trial; but it is not an absolute
necessity, and any judge of the same court may pronounce
the sentence. — 2 Rale, 405; 1 Chit. 697; R.v.Camplin,
1 Den. 89, as cited in R. v. Fletcher, Bell, C. C. 65.
If a case reserved is undecided, or if a writ of error is
still pending, or if the Governor has not yet given his
decision upon the case, or if a woman sentenced to death is
pregnant, or if the prisoner becomes insane after the sen-
tence, a reprieve may be granted either by the Governor,
or any judge of the court where the trial was held, in
term or in vacation. — 1 Chit. 758 ; 2 Hale, 412.
1052 PUNISHMENTS, PAEDONS, ETC.
It is clear that if from any mistake or collusion, the
criminal is cut down before he is really dead, and after-
wards revives, he ought to be hanged again, for the judg-
ment being '* to be hanged by the neck till he be dead," is
satisfied only by the death of the criminal. — 1 Chit. 788 ;
2 Hale, 412.
The nick-name of Jack Ketch is generally given to the
common hangman in the city of London, which name is
from John Ketch, a noted hangman in 1682, of whom his
wife said that any bungler might put a man to death, but
only her husband knew how to make a gentleman die
sweetly.
IMPKISONMENT.
23. Every one who is convicted of any offence not punishable
with death shall be punished in the manner, if any, prescribed by the
statute especially relating to such offence.— 32-33 V., c. 29, s. 88, part'
24. Every person convicted of any felony for which no punish-
ment is specially provided, shall be liable to imprisonment for life:
2. Every one who is convicted on indictment of any misdemeanor
for which no punishment is specially provided, shall be liable to five
years' imprisonment :
3. Every one who is summarily convicted of any offence for which
no punishment is specially provided, shall be liable to a penalty not
exceeding twenty dollars, or to imprisonment, with or without hard
labor, for a term not exceeding three months, or to both. — 32-33 V.,
c. 29, s. 88, part.
25. Every one who is convicted of felony, not punishable with
death, committed after a previous conviction for felony, is liable to
imprisonment for life, unless some other punishment is directed by
any statute for the particular offence, — in which case the offender
shall be liable to the punishment thereby awarded, and not to any
other— 32-33 V., c. 29, s. 88.
26. Every one who is liable to imprisonment for life, or for any
term of years, or other term, may be sentenced to imprisonment for
any shorter term: Provided, that no one shall be sentenced to any
shorter term of imprisonment than the minimum term, if any, pres"
PUNISHMENTS, PARDONS, ETC. 1053
cribed for the offence of which he is convicted. — 32-33 V.} c. 29, ss.
89 and 90, part.
27. When an offender is convicted of more offences than one,
before the same court or person at the same sitting, or when any offen-
der, under sentence or undergoing punishment for one offence, is con-
victed of any other offence, the court or person passing sentence may,
on the last conviction, direct that the sentences passed upon the
offender for his several offences shall take effect one after another.
32-33 V., c. 29, s. 92.
See B. v. Wilkes, Burr. 2577 ; B. v. Williams, 1 Leach
536 ; B. v. 0)ton, 14 Cox, 436 and 546.
28. Every one who is sentenced to imprisonment for life, or for a
term of years not less than two, shall be sentenced to imprisonment
in the penitentiary for the Province in which the conviction takes
place :
2. Every one who is sentenced to imprisonment for a term less than
jwo years shall, if no other place is expressly mentioned, be sen-
tenced to imprisonment in the common gaol of the district, county or
place in which the sentence is pronounced, or if there is no common
gaol there, then in that common gaol which is nearest to such locali-
ty, or in some lawful prieon or place of confinement, other than a
penitentiary, in which the sentence of imprisonment may be lawfully
executed :
3. Provided, that any prisoner sentenced for any term by any mili-
tary, naval or militia court martial, or by any military or naval autho-
rity under any Mutiny Act, may be sentenced to imprisonment in a
penitentiary :
4. Imprisonment in a penitentiary, in the Central Prison for the
Province of Ontario, in the Andrew Mercer Ontario Reformatory for
females, and in any reformatory prison for females in the Province
of Quebec, shall be with hard labor, whether so directed in the
sentence or not :
5. Imprisonment in a common gaol, or a public prison, other than
those last mentioned, shall be with or without hard labor, in the dis-
cretion of the court or person passing sentence, if the offender is
convicted on indictment, or under u The Speedy Trials Act," — and,
if convicted summarily, may be with hard labor if hard labor is part
of the punishment for the offence of which such offender is convicted,
1054 PUNISHMENTS, PAEDONS, ETC.
— and if such imprisonment is to be with hard labor, the sentence
shall so direct :
6. The term of imprisonment, in pursuance of any sentence, shall,
unless otherwise directed in the sentence, commence on and from the
day of passing such sentence, but no time during which the convict is
out on bail shall be reckoned as part of the term of imprisonment to
which he is sentenced :
7. Every one who is sentenced to imprisonment in any penitentiary,
gaol, or other public or reformatory prison, shall be subject to the
provisions of the statute relating to such penitentiary, gaol or prison
and to all rules and regulations lawfully made with respeci thereto.
—32-33 V., c. 29, ss. \,part, 91, 93, 94, part, %,part, and 97. 34 7.,
c. 30, s. 3,pai*t. 43 V., c. 39, s. 14, part. 43 V., c. 40, s. 9, part.
44 V., c. 32, s. 4. 46 V., c. 37 s. 4.
Imprisonment for one calendar month, how computed.
—Nigotti v. Colville, 14 Cox, 263, 305.
EEFORMATOEIES.
29. The court or person before whom any offender whose age at
the time of his trial does not, in the opinion of the court, exceed
sixteen years, is convicted, whether summarily or otherwise, of any
offence punishable by imprisonment, may sentence such offender to
imprisonment in any reformatory prison in the Province in which
such conviction takes place, subject to the provisions of any act
respecting imprisonment in such reformatory ; and such imprison-
ment shall be substituted, in such case, for the imprisonment in the
penitentiary or other place of confinement by which the offender
would otherwise be punishable under any Act or law relating thereto :
Provided, that in no case shall the sentence be less than two years'
or more than five years' confinement in such reformatory prison ;
and in every case where the term of imprisonment is fixed by law to
be more than five years, then such imprisonment shall be in the
penitentiary:
2. Every person imprisoned in a reformatory shall be liable to
perform such labor as is required of such person. 38 V., c. 43 . 43
V., c. 39, ss. I, part, and 14, part, and c 40, ss. 1, part, and 9, part.
WHIPPING.
30. Whenever whipping may be awarded for any offence, the
PUNISHMENTS, PARDONS, ETC. 1055
court may sentence the offender to be once, twice or thrice whipped,
within the limits of the prison, under the supervision of the medical
officer of the prison ; and the number of strokes and the instrument
with which they shall be infl cted shall be specified by the court in
thesenter.ee; and, whenever practicable, every whipping shall take
place not less than ten days before the expiration of any term of
imprisonment to which the offender is sentenced for the offence :
2. Whipping shall not be inflicted on any female. — 32-33 V., c. 20,
ss. 20, 21, parts, and c. 29, s. 95. 40 V., c. 26, s. 6.
SURETIES FOR KEEPING THE PEACE, AND FINES.
31. Every one who is convicted of felony may be required to enter
into his own recognizances, and to find sureties, both or either, for
keeping the peace, in addition to any puuishment otherwise autho-
rized :
2. Everyone who is convicted of any misdemeanor may, in addi-
tion to or in lieu of any punishment otherwise authorized, be fined,
and required to enter into his own recognizances, and to find sureties,
both or either, for keeping the peace and being of good behavior :
3. No person shall be imprisoned for not finding sureties under this
section, for any term exceeding one year. — 31 V., c 72, s. 5, part.
32-33 V., c. 18, s. 34, and c. 19, *. 58, and c. 20, s. 77, and c. 21, s.
122, and c. 22, s. 74.
32. Whenever any person who has been required to enter into a
recognizance with sureties to keep the peace and be of good behavior
has, on account of his default therein, remained imprisoned for two
weeks, the sheriff, gaoler or warden shall give notice, in writing, of
the facts to a judge of a superior court, or to a judge of the county
court of the county or district in which such gaol or prison is situate,
or, in the North- West Territories, to a stipendiary magistrate, — and
such judge or magistrate may order the discharge of such person,
thereupon or at a subsequent time, upon notice to the complainant or
otherwise, or may make such other order, as he sees fit, respecting
the number of sureties, the sum in which they are to be bound and
the length of time for which such person may be bound. — il V., c. 19,
s. 1.
33. Whenever a fine may be awarded or a penalty imposed for
any offence, the amount of such fine or penalty shall, within such
1056 PUNISHMENTS, PARDONS, ETC.
limits, if any, as are prescribed in that behalf, be in the discretion of
the court or person passing sentence or convicting, as the case may
be.— 32-33 V., c 29, s. 90, part.
Several articles censuring the legislation contained in
the Imperial Acts similar to the above three last sections
having been published in England, when it was enacted
there as part of the Consolidated Criminal Acts, Greaves,
Q.C., the learned framer of these acts, answered these
criticisms by the following remarks : —
" This is a new enactment. — A fine is, at common law,
one of the punishments for a misdemeanor, and by this
clause, the court may, in addition to, or in lieu of, any of
the punishments assigned to any misdemeanor by these
acts, fine the offender. (Sec. 31, sub-sec. 2, ante.) It may
be as well to observe that a fine ought not to be imposed
on a married woman, because in presumption of law she
has no property wherewith to pay it. — R. v. Thomas, Rep.
T. Hard. 278." 1 Russ. 92.
" In all cases of misdemeanor the court might, by the
common law, add to the sentence of imprisonment, by
ordering the defendant to find security for his good beha-
vior and for keeping the peace, and might order him to
be imprisoned until such security were found ; R. v. Dunn,
12 Q. B. 1026 ; but as this power was not generally
known, it was thought better to insert it in this clause."
" As it sometimes happens in cases of felony, that it
may be expedient to require sureties for keeping the peace
after the expiration of any imprisonment awarded, this
clause empowers the court to require such sureties. It is
easy to see that it may frequently be highly advisable to
pass a very short sentence of imprisonment on a youth,
and to direct him to be delivered to his friends on their
entering into the proper recognizances. And it may be well
PUNISHMENTS, PARDONS, ETC. 1057
worth making the experiment whether requiring adults to
find such sureties may not prove beneficial. The great
difficulty with which convicts have to contend immedi-
ately after their discharge, is the want of seme check that
may tend to prevent them from relapsing into their former
habits; and the knowledge that their sureties would be
liable to forfeit their recognizances might, and probably
would, in some cases at least, operate as a check upon their
conduct. In cases of assault and other breaches of the
peace, it has been found highly beneficial to require the
parties to find sureties for their future good behavior ;
and this leads to the hope that, even in cases of felony, a
similar result may follow from requiring sureties for keep-
ing the peace, especially where the felony has been accom-
panied by any personal violence."
" As an attack was made by Mr. Saunders, in the Law
s of the 21st of September last, on these clauses,
which might, peradveuture, cause some magistrates, who
have not had a professional education, to doubt, we an-
swered that attack in the addenda to the first edition, and,
as a reply to that answer was made by Mr. Saunders in
the Law Times of the 30th November last, we shall answer
that reply here. In order to render the matters plain, we will
first state the objections raised, then our answers, then the
reply, if any, to them ; and, lastly, our aDswers to that reply.''
" 1. Mr. Saunders asserted tha!; the difficulties of these
clauses were • of so formidable a character as to render it
exceedingly dangerous for any magistrate to encounter
them.' Xow, the power conferred by these clauses is only
conferred on courts which try criminals by indictment ;
and if there be any point of law peculiarly clear, it is that
no action will lie against any of the members of such a
court for any error in any judgment pronounced by that
sss
1058 PUNISHMENTS, PARDONS, ETC.
court. The courts of quarter sessions, therefore, may act
on these clauses with the most perfect safety. To this
answer no reply has been given, and no doubt for the best
possible reason, viz., that it admitted of none."
" 2. Mr. Saunders said, * it is difficult to understand
why the infliction of a fine should be inflexibly associated
with the entering into recognizances to keep the peace,'
and vice versd. As the clause was originally framed, the
court might either impose a fine on the offender, or require
him to find sureties ; but the select committee of the
Commons altered the clause in that respect. Nor is there
the slightest difficulty occasioned by the alteration. The
fine may be as low ; and the recognizances for as short a
time, and in as small an amount as the court thinks fit ;
and, consequently, the court may, in any case, if it think
fit, impose a nominal fine on the offender, and require him
to find sureties in a large amount ; or the court may, if it
think fit, impose a heavy fine on the offender, and take his
own recognizances alone in a small sum and for a short
time. So that the alteration made by the select committee
of the Commons can cause no practic.il difficulty whatever.
To this answer Mr. Saunders replied, that the objection
taken was that ' the hands of the court were fettered for
no practical advantage.' It is sufficient to rejoin that,
practically, the hands of the court were not fettered at all ;
for the court may impose a nominal fine, or require recog-
gnizances for a nominal term."
" 3. M. Saunders said, 'as regards the fine itself, the
section makes no provision in the event of its not being
paid. Suppose the fine is not paid, what is to be done with
the offender? Is he to be committed to gaol in default?
What authority is there for this ? And, if committed, for
how long? and, if for a time certain, is it to be with
PUNISHMENTS, PARDONS, ETC. 1059
or without hard labor ? These are difficulties which the
framers of the section have evidently not foreseen, and most
certainly have not provided for.' The answer is, all these
supposed difficulties have no existence whatever. When
an offender is convicted and receives judgment, he is in
the custody of the sheriff, and the question is not whether
he is to be committed to prison, for he is actually in prison,
but how he is to get out of prison ; and the only means by
which he can lawfully get out of prison, is by doing and
suffering whatever the court may lawfully adjudge him to
do or to suffer."
" It is a general rule, also, that when a statute creates
a new felony or misdemeanor, all the common law incidents
are impliedly attached tj it. Where, therefore, a statute
creates a misdemeanor, it at once is liable to the common
law punishments for misdemeanor, of which fine and
sureties of the peace, and imprisonment in default of paying
the one or finding the other are part. So where a statute
creates an offence and specifies its punishment, that punish-
ment is to be carried into execution according to the course
of the common law. Thus wherever a statute creates a
capital felony the offender may be sentenced and executed
according to the course of the common law. So, where a
statute authorizes the court to impose a fine, the offender
may be imprisoned according to the course of the common
law till the fine is paid. For, as Lord Coke says, " a fine
signifieth a pecuniary punishment for an offence, and regu-
larly to it imprisonment appertaineth." — 1 Inst. 126 b.
And hence it is that the statutes simply authorize the
courts to impose the fine, and its payment is enforced
according to the course of the common law. The framers
of the 9 G-eo. 4, c. 31, were well aware that this was the
law, and by s. 9, in the case of manslaughter, by s. 20, in
1060 PUNISHMENTS, PARDONS, ETC.
the case of taking away girls under sixteen years of age,
and by s. 23, in the case of assault upon clergymen, the
court was empowered to adjudge the offender to pay a fine ;
"but no provision was made in any of these cases as to what
was to be done in default of payment. No one will doubt
that Lord Campbell knew the law in this respect ; and it
is well known that he drew his Libel Act, 5-6 V.,
c. 96, with his own hand; and by ss. 4 and 5 of that act
the court may impose a fine, and there is no provision in
default of payment. It would be waste of time to refer
to other like enactments on a point so perfectly clear. All
the preceding observations, except those founded on the 9
Geo. 4, c. 31, and 5-6 V., c. 96, apply equally to
detaining an offender in prison till he finds sureties. But
one precedent in point may be added. The 37 Geo. 3, c.
126, s. 4, makes every person uttering coins liable to six
months' imprisonment and to find sureties for good beha-
vior for six months after the end of such imprisonment,
and in case of a second conviction, sureties are required
for two years ; but no power of commitment is given in
either case. Again, both the 1-2 Phil, and Mary, c.
13, s. 5 and the 2-3 Phil, and Mary, c. 10, s. 2, gave
justices who examined persons charged with felony,
'authority to bind all such by recognizances as do declare
anything material to prove ' the felony, and contained
no provision as to what was to be done if the witness
refused to be bound. Now, in Bennett v. Watson, 3 M.
& S. 1, it was held that under those statutes a justice
might lawfully commit a person who was a material
witness upon a charge of felony brought before him, and
who refused to appear at the sessions to give evidence, in
order that her evidence might be secured at the trial, and
Dampier, J., said ' the power of commitment is absolutely
PUNISHMENTS, PAKDOXS, ETC. 1061
necessary to the existence of the statute of Phil, and Mary ;
for unless there were such a power, every person would of
course refuse to enter into a recognizance, and the magis-
trate could not compel him ; and then, if he could further
avoid being served with a subpoena, the delinquent might
escape unpunished.' This is a very much stronger case
than the case of a convict required to find sureties, for he
is already in prison, whereas the witness is at liberty, and,
therefore in his case, the power both to apprehend and
commit has to be implied."
" It is perfectly clear, then, that the courts have power
under these clauses to order an offender to be detained in
prison until he pay the fine and find sureties. But supposing
a provision had been introduced expressly empowering the
court to award imprisonment until the fine was paid and
the sureties found, it would have made these clauses
inconsistent with s. 5 of the offences against the Person
Act, which follows s. 9 of the 9 Geo. 4, c. 31 ; and if that
had been altered likewise, both would have been made
inconsistent wTith Lord Campbell's Libel Act, and the other
acts containing similar clauses. To this answer Mr.
Saunders replied, ' Taking Mr. Greaves' exposition to be
correct that the common law incident of imprisonment
attaches upon non-payment of the fine, the objection that
the imprisonment is indefinite still remains in force. If
the fine is not paid, is imprisonment in default to be ever-
lasting ? ' We rejoin that imprisonment for non-payment
of a fine under this clause, is and was intended to be exactly
the same as for non-payment of a fine upon a conviction
for any common law misdemeanor; that the object of this
clause in this respect was to place all misdemeanors against
these acts precisely on the same footing as common law
misdemeanors ; that no complaint had ever been made of
1062 PUNISHMENTS, PAKDONS, ETC.
the common law on this subject, and, therefore, there was
not only no reason for any alteration in it, but its long use
without objection afforded a very good ground for extending
it to all similar cases, and that any alteration in these acts
would have rendered the law on the subject inconsistent ;
for it would have rendered the law different in misde-
meanors under these acts from what it was with like
offences at common law."
"4. But, Mr. Saunders asked, is the offender to be
committed to hard labor, and for a time certain ? Un-
doubtedly neither the one nor the other. The imprison-
ment for non-payment of a fine or not finding sureties is
not by way of punishment, but in order to compel the
payment of the one and the finding of the other, and there-
fore it is merely imprisonment until he pay the fine or find
the sureties, exactly the same as it is in cases of common
law misdemeanors. To this Mr. Saunders replied that
' it was further objected that upon imprisonment in default
of paying the fine, the court has no power to impose hard
labor. This Mr. Greaves admits.' Now, this is a misre-
presentation. Mr. Saunders originally merely asked, ' Is
it (the imprisonment) to be with or without hard labor ? '
and we, having answered that question conclusively, Mr.
Saunders puts this new objection, and adds, ' surely the
power of imposing hard labor would be in many cases an
active stimulant towards accomplishing the end desired.'
It might just as well be said that the court ought to have
been empowered to order the defendant to be whipped
every day until he paid the fine, which would, we conceive,
have been a more active stimulant than hard labor. The
question is not, however, what is the best stimulant to
make the offender pay the fine ; but what is the proper
substitute for non-payment of the fine. ? By the common
PUNISHMENTS, PARDONS, ETC. 1063
law, simple imprisonment has always been that substitute.
We have shown that in summary cases, however, wherever
justices have authority either to fine, or imprison, whe-
ther with or without hard labor, they never ought to have
power to award imprisonment with hard labor for non-
payment of a fine, Introduction to 1st Ed., P. xxxiii.,
and our reasoning is completely supported by the high
authority of Chief Justice (Jockburn, in R. v. Willmott, 1
B. & S. 27. We will now apply the same reasoning to
imprisonment for non-payment of a fine on conviction for
a misdemeanor against these acts, and we cannot do better
than take the example of dog-stealing under the 24-25
Vict., c. 96, s. 18 ; by which any person who steals a dog
may either be imprisoned with or without hard labor for
not exceeding six months, or shall forfeit over the value of
the dog not exceeding 201., and by sec. 107, in default of
payment he may be imprisoned either with or without
hard labor. For a second offence of dog-stealing, the
defendant is to be guilty of a misdemeanor, and liable to
imprisonment for not exceeding eighteen months, with or
without hard labor, and by the general clause in question
the court may impose a fine either in addition to or in lieu
of these punishments. Now, if the court under this clause
adjuges imprisonment without hard labor, it is tanta-
mount to adjudging that the offence does not deserve even
imprisonment, and to give the court power to imprison witli
hard labor for non-payment of the fine would be almost
equivalent to giving it power, uno flatu, to adjudge the
offender not deserving and deserving of hard labor. Nay,
more, it would be giving the court power, after adjudg-
ing that the defendant merely deserved to be fined for an
indictable offence, to adjudge him to be imprisoned with
hard labor for mere non-payment of money, no criminal
1064 PUNISHMENTS, PAEDONS, ETC.
offence at all. Mr. Saunders, however, says that 'such
an anomaly' as not giving the court power to award hard
labor for non-payment of a fine imposed for a second
offence of dog-stealing, 'clearly shows the defectiveness
of the section ; ' and he arrives at this conclusion thus :
After stating the punishment for the first offence, he
proceeds: 'then in default of payment he may, under
Jervis's Act, 11-12 V., c. 43, s. 19, be committed to
prison with or without hard labor.' In which short
passage there are two mis-statements. That section only
applies where, by the statute in that behalf, no mode of
enforcing the payment of the penalty is provided. Now
sec. 107 of the Larceny Act does provide for enforcing the
payment of the penalty for dog-stealing ; and consequently
Jervis's Act has nothing to do with the case. But
even if it did apply, a distress warrant must be issued in
the first instance, unless its issuing would be ruinous to the
defendant, or it appeared that he had no goods. It is there-
fore incorrect to state generally that the defendant may
under that section be committed at all. So that we have
both a wrong statute cited, and that statute wrongly
stated. It is true that a similar argument might have
been founded on sec. 107 of the Larceny Act, but it would
be completely answered by that we have said here and in
the Introduction. "
" 5. Next, Mr. Saunders said that ' the court will have
no authority to take the recognizance of one surety only
since the statute speaks only of sureties.' Now the Court
of Queen's Bench never takes less than two sureties in
any case, and generally four in cases of felony, and with
very good reason, for one surety may die, become insol-
vent, or quit the country ; but it is much less likely that
two or more sureties should do so. Therefore, there was an
PUNISHMENTS, PARDONS, ETC. 1065
excellent precedent founded on good reason for requiring
more than one surety. The select committee of the Com-
mons introduced the power to take the offender's own
recognizances. Mr. Saunders in reply admits ' that the
Queen's Bench usually requires two sureties,' ' but thinks
that circumstances may occur, particularly in the case of a
young person, where one surety (the parent) need alone
be required.' We reply that the admitted practice, inva-
riably followed from time immemorial by the Court of
Queen's Bench, was an infinitely better guide to follow
than any other.''
" Lastly, Mr. Saunders said that the proviso, which was
introduced by the committee of the Commons ' means
that if any person is required to find sureties for more than
a year, he shall not be imprisoned for not doing it.' Accord-
ing to this reading, every person required to find sureties
for a less term than a year would be liable to be imprisoned
for life unless he found them ; whilst a person required to
find them for more than a year would not be liable to be
imprisoned at all. The objector, therefore, may well admit
that cannot be the intention of the section. The com-
mittee of the Commons thought that the clause clearly
meant that no one was to be imprisoned for more than a
year for not finding sureties. They framed it, and they are
at least as competent as the objector to understand its
meaning. In reply Mr. Saunders says, that Mr. Greaves
admits that the meaning of the Legislature was ' that no
person shall be imprisoned under this clause for any period
exceeding one year for not finding sureties. That being so,
we will only add, that it is very much to be regretted that
the British Legislature has not said what it meant, in-tead
of saying what it did not mean.' But has it done so?
The words are, ' No person shall be imprisoned under this
1066 PUNISHMENTS, PAEDONS, ETC.
clause for not finding sureties for any period exceeding
one year, and the objection rests on reading 'sureties 'toge-
ther with ' for any period exceeding one year.' Now, ' sure-
ties to keep the peace or to be of good behavior for any
terra,' is a perfectly well-known expression ; but ' sureties
for any period' is a very unusual, if not an altogether un-
known expression, and it therefore ought not to be supposed
to be used in any case, especially where it makes nonsense
of a sentence. Again, in pronouncing sentence nothing is
more common than to insert the cause of imprisonment
between the word ' imprisoned,' and the term of imprison-
ment awarded, e.g., ' The sentence of the court, is that you
be imprisoned for this your offence for the term of one
year,' and if the clause be so read it is perfectly free from
objection. If the clause had run ' imprisoned for not
paying a fine for any period exceeding one year,' no doubt
would have existed as to its meaning, and there is equally
little as to the meaning of the clause as it stands ; for where
a clause is capable of being read in two ways, one of which
leads to a manifest absurdity, and the other makes per-
fectly good sense, it is obvious that the latter is the right
reading."
" We said and repeat, that there was nothing whatever
in any one of the numerous objections, and unquestionably
nothing to justify a writer in saying that the clause was
' so slovenly drawn ; ' 'it is astonishing that a section so
loose as this one should have been permitted to have found
its way into this act ; ' l taken altogether this section is a
most unfavorable specimen of legal workmanship, and
will cause very great embarrassments to those whose duty
it will be to carry it into effect.' "
" Not satisfied, however, with ' attacking ' this clause in
the Law Times, Mr. Saunders returns to the charge in his
PUNISHMENTS, PARDONS, ETC. 1067
and Mr. Cox's Edition of the statutes, p. 97, where he
starts the additional objection, that ' the section contains
new and very extensive powers.' Surely Mr. Saunders
cannot but know that the power to fine and require sureties
for keeping the peace and being of good behavior on a
conviction for misdemeanor is one of the oldest powers
known to the common law. Then Mr. Saunders says, ' it
may well be questioned whether when a criminal has suf-
fered his appointed punishment, it is judicious to impose
upon him the further inconvenience of providing bondsmen
for his future good behavior.' It would be enough to
answer that such has been the case in common law misde-
meanors from time immemorial, and no one ever heard a
complaint against it ; but it may be well to add, that nei-
ther fines nor sureties are ever awarded ' when a criminal
has suffered his appointed punishment;.' on the contrary,
the court always considers them as part of the punishment,
and this power is always used in mercy towards the cri-
minal, and a less term of imprisonment awarded, where it
is exercised. In fact, instead of the clause being open to
this objection, it is a most humane and merciful provision
founded on that ' nursing mother,' the common law."
" Mr. Saunders again returns to the charge, p. 244, with
the further objection that this clause ' in effect amounts
to a bestowal of unlimited powers of mitigation of punish-
ment, and when we find that unlawfully and maliciously
wounding, etc., are all misdemeanors, the powers thus given
to impose a fine in lieu of any other punishment, looks
very like jesting with criminal punishment.' — Had Mr.
Saunders forgotten that by sec. 5 of the same act any per-
son convicted of manslaughter (a crime infinitely greater
in many cases than misdemeanor) may be sentenced to pay
a fine either in addition to or without any other punish-
1068 PUNISHMENTS, PARDONS, ETC.
ment? So under the 9 Geo. 4, c. 31, s. 9, the court might
have awarded a fine on a conviction for manslaughter,
without any other punishment." — Greaves' Cr. Acts, 6.
34. The punishment of solitary confinement or of the pillory shall
not be awarded by any court.-— 32-33 V., c. 29, s. 81 .
The pillory was a frame erected in a public place on a
pillar, and made with holes and moveable boards, through
which the heads and hands of criminals were put. The
punishment of the pillory, which had been abolished, in
England, in all other cases, by 56 Geo. III., c. 138, was
retained for the punishment of perjury and subornation of
perjury, but it is now altogether abolished by 7 Wm. IV.,
and 1 V., c. 23 : — 1 Chit. 797; Wharton, Law Lexicon,
Verb. Pillory.
DEODAND.
35. There shall be no forfeiture of any chattels which have moved
to or caused the death of any human being, in respect of such death.
—32 33 V., c. 29, s. 54.
By the common law, omnia qua movent ad mortem
sunt Deo danda. Hence the word " deodand," which
signified a personal chattel which had been the immediate
occasion of the death of any reasonable creature, and which,
in consequence, was forfeited to the crown, to be applied,
to pious uses, and distributed in alms by the High Alm-
oner. Whether the death were accidental or intended,
whether the person whose chattel had caused the death
participated in the act or not, was immaterial. The cart,
the horse, the sword, or anything which had occasioned the
death of a human being, or the value thereof, was forfeited,
if the party died within a year and a day from the wound
received. And for this object, the coroner's jury had to
inquire what instrument caused the death, and to establish
PUNISHMENTS, PARDONS, ETC. 1069
the value of it. But the jury used to find a nominal
value only, and confine the deodand to the very thing or
part of the thing itself which caused the death, as, if a
waggon, to one of the wheels only. — B. v. Rolfe, Fost.
266; 1 Haivkins, 74 ; 1 BIact>stone, 300. This forfeiture,
" which seemeth to have been originally founded rather in
the superstition of an age of extreme ignorance than in the
principles of sound reason and true policy," Fost. 266,
was abolished in England on the 1st day of September,
1846, by the 9-10 V., c. 62.
ATTAINDER.
36. Except in cases of treason, or of abetting, procuring or coun-
selling the same, no attainder shall extend to the disinheriting of any
heir, or to the prejudice of the right or title of any person, other than
the right or title of the offender during his natural life only. — 32-33
V.. c. 29, s. 55.
37. Every one to whom, after the death of any such offender, the
right or interest to or in any lauds, tenements or hereditaments, should
or would have appertained, if no such attainder had taken place, may,
after the death of such offender, enter into the same. — 32-33 J~, c.
19, s.56.
By the common law, a man convicted of treason or
felony stands attaint. By this attainder, he loses his
civil rights and capacities, and becomes dead in law, civi-
liter mortuus. — 1 Stephens' Coram. 141. He forfeits to
the King all his lands and tenements, as well as his per-
sonal estate, his blood is corrupted, so that nothing can
pass by inheritance to, from or through him. — 4 BlacJcstone,
380, 387 ; 2 Haukins, 637. But the lands or tene-
ments are not vested in the crown during the life of the
offender, without office, or office-found which is finding by
a jury of a fact which entitles the crown to the posses-
sion of such lands or tenements. — Whaiioa's Law Lexicon,
1070 PUNISHMENTS, PAEDONS, ETC.
verb. ''Inquest of oftce? "office-found." — 3 Stephens'
Comm. 661 ; though this formality is not necessary in
cases of treason, where, by 33 Hen. VII E. ch. 20, sec. 2,
goods and chattels become the property of the crown without
office.
The aforesaid sections of the Procedure Act are taken
from the 54 Geo. III., c. 145, of the Imperial Statutes ;
they have the effect to abolish the corruption of blood in
felonies. They seem to exclude cases of treason, or rather
to assume that corruption of blood exists in treason ; but,
in these cases, corruption of blood never existed in this
country, not being part of the criminal law of England, as
introduced here, it having been abolished in England, by
7 Anne, c. 21, sec. 10, suspended by the 17 Geo. II., c.
39, sec. 3, till not only the Pretender, but also his eldest,
and all and every his son and sons, should be dead, an
event long ago accomplished.
The 39 Geo. III., c. 93 (Imperial), repealed these last
mentioned statutes, but it is not law for us. — 1 Chitty,
734, 741 ; 4 Stephens' Comm. 455.
This view, on this part of the law, seemed to bear such
incongruous consequences, that we thought it better to
have upon it the opinion of the learned Mr. Wicksteed,
law clerk of the House of Commons, the framer of the
above clauses.
Mr. Wicksteed had the kindness to write as follows :
"Sections 55 and 56 of the 32-33 V., c. 29, are taken
from the statute of U. C, 3 Wm, IV., c. 4, and, I think,
should be read, and should have been printed as one sec-
tion, as they are in the U. C. statute. Why the U. C.
Legislature supposed that it was desirable to pass that
act, I do not exactly know, but suppose that, after the
passing of the Imperial Act, 54 Geo. III., c. 145, ' An Act
PUNISHMENTS, PARDONS, ETC. 1071
to take away the corruption of blood save in certain cases,'
which does not in any way refer to the prior acts of
William III., Anne, or 39-40 Geo. Ill, but simply enacts
that, ' no attainder for felony which shall take place after
the passing of the act, save in the cases of high treason
petty-treason or murder, or abetting or procuring or coun-
selling the same, shall extend to disinheriting any heir,'
&c, they thought that the operation of the acts of Win.
III., and Anne was at any rate doubtful as to high-treason,
and not at all doubtful as to petty-treason and murder,
and they, therefore, passed an act identical with that of
the Imperial Parliament, as to high-treason, but extending
the exemption to all other cases of felony, except high
treason. And it is well to observe that the act 39-40
Geo. III., c. 93, which is supposed to have repealed the
acts of Wm. II I. and Anne, does nothing of the kind, but
merely regulates the mode of indictment and trial in cases
where the overt act of treason consists in a direct attempt
■on the life of or bodily harm to the Sovereign, and provides
that, after conviction in such cases, judgment shall be
nevertheless given and execution done as in other cases of
high-treason ; nothing is said of the consequences of the
attainder, and the act is entitled ' An act for regulating
trials of high-treason and misprison of treason in certain
cases.' I do not see that this act repeals the two foregoing
' statutes, (William and Ann) or restores the" old law if it
was repealed by them, and the Imperial act 54 Geo. III.,
c. 145, seems to assume that the old law existed, notwith-
standing the three former acts, or it ought to have repealed
them. It goes to work in a better way, for they, if in
force, would have abolished corruption of blood in high-
treason, and left it in other felonies of minor degree. And
the U. C. Stat, and our present one go still further and
1072 PUNISHMENTS, PARDONS, ETC.
abolish it in all cases but high treason, thus very properly-
reversing the operation of the statutes William III, and
Anne. I am not aware that any statute of the Imperial
Parliament or of any of the Provinces of Canada has re-
enacted corruption of blood for high treason. It would
seem then that the acts of William and Anne, and 17 Geo.
II., c. 39 (which I could not look at as it is absent from
the library,) were intended to abolish corruption of blood
for treason after the death of the sons of the Pretender,
the last of whom, Cardinal York, died at "Rome in 1807,
and, therefore, before the passing of the Imperial Act, 54
Geo. III., c. 145, and still longer before the passing of the
U. C. act, 3 Wm. IV., c. 4. But though the said acts
would appear to have abolished corruption of blood for
treason from 1807, yet, both the Imperial Parliament and
the U. C. Legislature seem to have thought that the said
acts had not that effect, for neither the Imperial nor the
U. C. act re-enact the corruption of blood for treason, but
assume that it existed, and abolish it in certain other cases.
If so, then, in Lower Canada, it does not seem to have
been abolished' in treason or felony, until the passing of
our act of 1869, There is a little mystery about this, but
fortunately, it does not matter now, except as a curiosity
of legislative history. The Imperial Parliament passed an
act, in 1870, 33-34 V., c. 23, abolishing forfeitures in all
caSes — a very sensible thing. But the act is necessarily
long and special, as it had to provide for the management
of a felon's property while undergoing sentence of impris-
onment. In Chitty's Cr. L., vol. 1, p. 741, there is something
on this matter, and he calls the 7 Anne an ineffectual
attempt to remove the corruption of blood from high
treason. But I doubt whether Chitty had the statutes
before him, for the effect of 39-40 Geo. II L, c. 93, and of
54 Geo. III., c. 145, seem both to be incorrectly stated."
PUNISHMENTS, PARDONS, ETC. 1073
These valuable notes go strongly to confirm the view of
the law as expressed on the subject, ante ; neither the U.
C. Act (C. S. U. C, c. 116) nor section 55 of the Proce-
dure Act of 1869 can be taken as reenacting the corrup-
tion of blood in cases of high-treason : they both, assuming
that it exists, pretend to leave it in force. But it appears
that it does not exist. When the criminal laws of England
were introduced either in Upper or in Lower Canada, there
were in force, in England, as stated, ante, two statutes
abolishing such corruption of blood in high treason, vir-
tually from 1807 (see Hawkins' P. C, by Curwood, VoL
II., p. 649 note) : these statutes, were transmitted to us as
part of our laws : they have never been repealed in Canada ;
so, it would seem that, in the present state of our law,
there is no corruption of blood either in cases of high
treason or any other felony, and that on attainder of all
felonies, the criminal forfeits only his goods and chattels,
and the profits of lands during life, while his real estate
comes, in the ordinary channel of descent, to his heir who
is thus also restored to a full capacity to inherit. See for
Ontario, C. S. U. C, c. 82, tec. 7.
In the Province of Quebec, by articles 32 and 33 of the
civil code, civil death results from a condemnation to death
or penitentiary for life : by art. 35, all the property of the
civiliter mortuus is confiscated to the Crown; by art. 36,
the civiliter mortuus cannot take or transmit by succes-
sion. Is there not a contradiction between these articles,
and more particularly the last one and sections 36 and 37 of
the above act, on punishments. Parliament has undoubt-
edly exclusive jurisdiction on the judgment and all the
parts of the judgment in criminal cases. But are the
attainder, forfeiture, etc., a part of the judgment, or only
a consequence of it ? See 4 Blackstn. 386. If only a con-
TTT
1074 PUNISHMENTS, PARDONS, ETC.
sequence of the judgment, do they fall within the Criminal
La w or the Civil Law ?
The attainder can be reversed by Act of Parliament only •
the royal pardon has not that effect. — Rochon v. Lecluc, 1
L. C. J. 252 ; 2 Hawkins, 49.
The goods of an adjudged felon belong to the Queen,
without office found, though they are allowed to remain in
the possession of his wife, or any other party. So if a
larceny is committed of such goods, they must be laid in the
indictment as belonging to the Queen, even if the felon is
only sentenced to a short period of imprisonment ; but a
house or land continues to be the felon's property, as long
as no office is found. — R. v. Whitehead, 2 Moo. C. C. 181.
As remarked by Mr. Wicksteed (see ante), forfeitures,
confiscations and attainders are now abolished in England
since 1870.
It may be useful to remark that though the rebels of
1837-38, sentenced by the Courts-Martial then established,
were declared attaint, and their property confiscated, this
was in virtue of a special statute specially passed for that
purpose, — the 2 V., c. 7, of the Lower Canada Statutes.
As to the validity of assignment by felons, see Choivne
v. Bay 'lis, 31 Beav. 351; Perkins v. Bradley, 1 Hare,
219; Saunders, in re, 9 Cox, 279; Whitaker v. Wisbey,
12 C. B. 44.
PARDONS.
38. The Crown may extend the Royal mercy to any person
eentenced to imprisonment l>y virtue of any statute, although such
person is imprisoned for non-payment of money to some person other
than the Crown— 32-33 V., c. 29, s. 125.
39. Whenever the Crown is pleased to extend the Royal mercy to
any offender convicted of a felony punishable with death or otherwise,
•and grants to such offender either a free or a conditional pardon, by
PUNISHMENTS, PARDONS, ETC. 1075
warrant under the Royal Sign Manual, countersigned by one cf the
principal Secretaries of State, or by warrant under the hand and
seal-at-arms of the Governor General, the discharge of such offender
out of custody, in case of a free pardon, and the performance of the
condition in the case of a conditional pardon, shall have the effect of
a pardon of such offender, under the Great Seal, as to the felon v for
which such pardon has been granted ; but no free pardon, nor any
discharge in consequence thereof, nor any conditional pardon, nor the
performance of the condition thereof, in any of the cases aforesaid,
shall prevent or mitigate the punishment to which the offender might
otherwise be lawfully sentenced, on a subsequent conviction for any
felony or offence other than that for which the pardon was granted.
— 32-33 V., c. 2H, 5.126.
COMMUTATION OF SENTENCE.
40. The Crown may commute the sentence of death passed upon
any person convicted of a capital crime, to imprisonment in the
penitentiary for life, or for any term of years not less than two years,
or to imprisonment in any other gaol or place of confinement for any
period less than two years, with or without hard labor ; and an
instrument under the hand and seal-at-arms of the Governor General,
declaring such commutation of sentence, or a letter or other instru-
ment under the hand of the Secretary of State or of the Under Secretary
of State, shall be sufficient authority to any judge or justice, having
jurisdiction in such case, or to any sheriff or officer to whom such
letter or instrument is addressed, to give effect to such commutation,
and to do all such things and to make such orders, and to give such
directions, as are requi-ite for the change of custody of such convict,
and for his conduct to and delivery at such gaol or place of confine-
ment or penitentiary, and his detention therein, according to the terms
on which his sentence has been commuted. — 32-33 Y., c. 29, s- 127.
UNDERGOING SENTENCE, EQUIVALENT TO A PARDON.
41. When any offender has been convicted of an offence not punish-
able with death, and has endured the punishment to which such
offender was adjudged,— or if such offence is punishable with death
and the sentence has been commuted, then if such offender has endured
the punishment to which his sentence was commuted, the punishment
eo endured shall, as to the offence whereof the offender was so
convicted, have the like effect and consequences as a pardon under
the Great Seal; but nothing herein contained, nor the enduring of
1076 PUNISHMENTS, PAKDONS, ETC.
such punishment, shall prevent or mitigate any punishment to which
the offender might otherwise be lawfully sentenced, on a subsequent
conviction for any other offence. — 32-33 V., c. 29, s. 128. 9 Geo. 4, c.
32, s. 3, Imp.
See Ley man v. Latimer, 14 Cox, 51.
42. When any person convicted of any offence has paid the sum
adjudged to be paid, together with costs, under such conviction, or
has received a remission thereof from the Crown, or has suffered the
imprisonment awarded for non-payment thereof, or the imprisonment
awarded in the first instance, or has been discharged from his con-
viction by the justice of the peace in any case in which such justice
of the peace may discharge such person, he shall be released from
all further or other proceedings for the same cause. — 32-33 V., c. 21,
8. 120, and c. 22, s. 73.
43. Nothing in this act shall, in any manner, limit or affect Her
Majesty's Royal prerogative of mercy. — 32-33 V., c 29, s. 12 '.
GENERAL PROVISIONS.
44. The Governor in Council may, from time to time, make such
rules and regulation^ to be observed on the execution of judgment of
death in every prison, as he, from time to time, deems expedient for
the purpose, as well of guarding againi-t any abuse in such execution I
as also of giving greater solemnity to the same, and of making known
without the prison walls the fact that such execution is taking place.
— 32-33 V., c 29, s. 118.
45. All such rules and regulations shall be laid upon the tables of
both Houses of Parliament within six weeks after the making thereof,
or, if Parliament is not then sitting, within fourteen days after the
next meeting thereof. — 32 33 P., c 29, s. 119.
46. The forms set forth in the schedule of this Act, with such
variations or additions as circumstances require, shall be used for the
respective purposes indicated in the said schedule, and according to
the directions contained therein. — 32-33 V., c 29, s. 122.
47. Nothing in this act snail alter or affect any laws relating to
the government of Her Majesty's land or naval forces. — 32-33 V., c.
29, s. 137.
SCHEDULE.
CERTIFICATE OF SURGEON.
I, A. B., surgeon (or as the case may be) of the (describe the
prison,) hereby certify that I, this day, examined the body of
C. D., on whom judgment of death was this day executed in the
said prison; and that on such examination I found that the said
C. D. was dead.
(Signed,) A. B.
Dated this day of , 18 .
DECLARATION OF SHERIFF AND OTHERS.
TVe, the undersigned, hereby declare that judgment of death
was this day executed on C. D., in the (describe the prison), in
our presence.
Dated this day of , 18 .
E. P., Sheriff of
L. M., Justice of the Peace for
G. H., Gaoler of
etc., etc.
SURETIES.
COMPLAINT BY THE PARTY THREATENED, FOR
SCRETIES FOR THE PEACE.
Canada, ~\
Province of , district (or county, united >•
counties, or as the case may be,) oP . )
The information (or complaint) of C. D., of the township
of , in the said district (or county, united counties, or as
the case may be,) of , (laborer). (If preferred by an
attorney or agent, say — by D. E., his duly authorized agent (or
attorney,) in this behalf), takeu upon oath, before me, the under-
1078 PUNISHMENTS, PARDONS, ETC.
signed, a justice of the peace, in and for the said district (or
county, united counties, or as the case may be) of , at N.,
in the said district, (county, or as the case may be) of ,
this day of , in the year one thousand eight hundred
and , who says that A. B., of the (township) of ,
in the district (county, or as the case may be,) of , did, on
the day of (instant or last past, as the case may be,)
threaten the said C. D. in the words or to the effect following,
that is to say, (set them out, with the circumstances under xohich
they were used.) and that from the above and other threats used
by the said A. B. towards the said C. L\, he, the said C. D. is
afraid that the said A. B. will do him some bodily injury, and
therefore prays that the said A. B. may be required to find
sufficient sureties to keep the peace and be of good behavior
towards him, the said C. D.; and the said C. D. also says that
he does not m ike this complaint against nor require such sureties
from the said A. B. from any malice or ill-will, but merely for
the preservation of his person from injury.
FORM OF RECOGNIZANCE FOR THE SESSIONS.
Bo it remembered that on the day of , in the
year , A. B. of (laborer,) L. M. of (grocer,)
and N. O. of (butcher,) personally came before («s) the
undersigned, (tioo) justices of the peace for the district (or
county, united counties, or as the case may be,) of , and
severally acknowledged themselves to owe to our Lady the Queen
the several sums following, that is to say : the said A. B. the
sum of , and the said L. M. and N. 0. the sum of ,
each of good and lawful money of Canada, to be made and levied,
of their goods and chattels, lands and tenements respectively, to
the use of our said Lady the Queen, her heirs and successors, if
he, the said A. B., fails in the condition indorsed (or hereunder
written.)
Taken and acknowledged the day and year first above men-
tioned, nt before us.
J. S.
J. T.
PUNISHMENTS, PAEDONS, ETC. 1079
The condition of the within (or above) written recognizance is
such that if the within bound A. B. (of, etc.) appears at the
next court of general sessions of the peace (or other court din-
charging the /unctions of the court of general sessions, or as the
case may be), to be holden in and for the s:iid district (or county*
united counties, or as the case may be,) of to do and
receive what is then and there enjoined him by the court, and in
the meantime keeps the peace and is of good behavior towards
Her Majesty and her liege people, and specially towards C. D.
(of, etc.), for the term of now next ensuing, then the said
recognizance to be void, otherwise tc stand in full force and
virtue.
FORM OF COMMITMENT IN DEFAULT OF SURETIES.
!
Canada,
Province of , district (or county, united
couuties, or as the case may be.) of
To all or any of the constables or other peace officers in the dis-
trict (or county, united counties, or as the case may be,)
of , and to the keeper of the common gaol of the said
district (or county, united counties, or as the case may be,)
at , in the said district (or county, etc.)
Whereas on the day of instant, complaint on oath
was made before the undersigned (or J.L., E-quire,) a ju-tice of
the peace in and for the said district (or county, united counties,
or as the case miy be.) of , by C. D., of the township
of , in the said district (or county, or as the case may be)
(laborer), that A. B., of (etc.,) on the day of , at
the towuship of , aforesaid, did threaten (etc.,
follow to end of complaint, as in form above, in the past tense,
then) : And whereas the said A. B. was this day brought and
appeared before the said justice (<>r J. L., Esquire,) a justice of
the peace in and for the said district (or county, united counties,
or as the case may be,) of , to answer unto the said com*
plaint : and having been required by me to enter into his own
1080 PUNISHMENTS, PARDONS, ETC.
recognizance in the sum of , with two sufficient sureties in
the sum of each, as well for his appearance at the next
general sessions of the peace (or other court discharging the
functions of the court of general sessions or as the case may be,)
to be hold in and for the said district (or county, united counties,
or as the case may be,) of , to do what shall be theu and
there enjoined him by the court, as also in the meantime to keep
the peaca and be of good behavior towards Her Majesty and her
liege people, and especially towards the said 0. D., has refused
and neglected, and still refuses and neglects, to find such sure-
ties : These are therefore to command you, and each of you, to
take the said A. B., and him safely to convey to the (common
gaol) at aforesaid, and there to deliver him to the keeper
thereof, together with this precept : And I do hereby command
you, the said keeper of the (common gaol,) to receive the said
A. B. into your custody in the said (common gaol,) there to
imprison him until the said next general sessions of the peace
(or the next term of sitting of the said court discharging the
functions of the court of general sessions, or as the case m-iy be,)
unless he, in the meantime, finds sufficient sureties as well for his
appearance at the said sessions (or court) as in the meantime to
keep the peace as aforesaid.
Given under my hand and seal, this day of , in
the year , at in the district (or county, or as the
case may be,) aforesaid.
J. S. [L.s.j
APPENDIX.
MSS. NOTE BY C. S. GREAVES, ESQ., Q.C., OX RAPE.
For the purpose of the better consideration of the statutes relating
to rape, it will be best to place them together.
Among the Laws of William the Conqueror, at the end of Kelham's
Norman Dictionary, p. 36, we have "De muliere vi compressd et,
pudicitid luctamine tentatd, qui fwminam vi compresserit forisfacit
membra sua. Qui prostravit fceminam ad terram et (Quoere ? ut,J vi vim
inferat, mulcta ejus Domino est X solidi. Si vero earn compresserit,
forisfacit membra.
By the 3 Edw. 1, c. 13, "the King prohibiteth that none do ravish,
Or take away by force any maiden within age (neither by her own
consent nor without,) nor any wife or maiden of full age, nor any
other woman against her will ; and if any do, at his suit that will sue
within 40 days, the King shail do common right ; " (and if none sue
the King shall, and,on conviction, imprisonment and fine shall follow.)
By the 13 Edw. 1. st. 1. c. 34, " if a man from henceforth do rai-ish a
woman married, maid, or other, where she did not consent neither before
nor after, be aha]] nave judgment of life and member. And likewise
where a man ravisheth a woman married, lady, damosel or other,
with force, although she consent after, he shall have such judgment as
before is said, if he be attainted at the King's suit, and there the King
shall have his suit." By the C. E. II, st. 1, c. 6, whensoever, ladies
and the daughters of noblemen and other women "be ravished, and
after such rape do consent to such ravishers, that as well the ravishers
as they that be ravished and every of them be from thenceforth
disabled " to take any inheritance, etc., The 18 Eliz., c. 7, took away
benefit of clergy in all cases of rape.
The statute of William the Conqueror was repealed by the 3 Edw.
1, c. 13, and it and the other statutes continued in force until the
9 G. 4, c. 31, which repealed them.
The crime of rape was felony at common law, and the offender
was to suffer death (2 Inst. 180) ; and it is thus defined by Lord
Coke, " rape is when a man hath carnal knowledge of a woman by
1082 APPENDIX.
force and against her will ; " (Co. Lift 123, b) and commenting upon
what this word (rape) doth signify in the 3 Edw. 1, c. 13, and other
statutes, Lord Coke says, " it is well described by the mirror ' rape
solonque le volunt del estatute est prise pour un proper mots done pur
chescun afforcement de fern' (forcing of a woman, Kelham, W. D.)
But better in another place," rape is when a man hath carnal knowledge
of a woman by force and against her will,11 (2 Inst. 180, 3 Inst. 60),
and this definition has been followed in too numerous books to
warrant a reference to them.
Then rape, like murder, has a fixed meaning, which nothing else can
express. In the Year Book, 9 Ed. 4 f. 26 pi. 35, a man was indicted
for that he Aliciam felonice cepit et earn tunc et ibidem carnaliter cogno-
vit contra voluntatem suam. Per Lakin (Judge of K.B.); The statute (13
Ed. 1, c. 34,) says that if a man ravish a Dame or Damosel ; so the
indictment ought to state according to the statute that he committed
the felony, scilicet quod ipsam rapuit, etc., for it cannot be taken by
the indictment for a case of felony. If a special act be made that if
one ravish such a woman, that this shall be felony, and he
be indicted quod earn felonice cepit et earn carnaliter cognovit, this
avails not ; but she ought to state according to the statute that she
was ravished." Per Yelverton (Judge of K B.:) "If a woman bring
an appeal of rape, she ought to say rapuit, or otherwise it
availeth not." Hele (counsel) : "writs ought to follow the form,
and this is the form of an appeal, as you say ; but an indictment
holds no form, but only (states) the truth of the fact, and this matter
in itself proves that he ravished her ; wherefore it is sufficiently good,
for it is the same in effect as if it had said rapuit. Billing (C.J.K.B. :)
** Where a man is indicted of murder, if he buy a charter of pardon,
he ought to make mention expressly of murder, or otherwise it shall
not be allowed ; therefore, if a man be indicted that he of malice pre-
pense assaulted and killed a man, and says not murdravit, notwith-
standing that this matter proves that he murdered him, yet the indict-
ment is bad, because he is not indicted quod murdravit, etc. So here it
ought to have the word that makes the felony, — scilicet rapuit." Lord
Coke thus applies this case " this word rape is so appropriated by law
to this case, as without this word (rapuit) it cannot be expressed by
any periphrasis or circumlocution ; for carnaliter cognovit earn, or
the like, will not serve." (Co Litt. 123b.) Accordingly every indict-
ment for rape has always used the word-
No rule is better settled than that where a word has had a definite
APPENDIX. 1083
meaning attached to it at common law, and that word is used in any
statute it will have the very same meaning in the statute as it had
at common law, and that is more especially the case when the word
imports an offence ; and consequently the common law meaning" of
rape must be given to that word wherever it is used in any statute,
and so the meaning affixed to any term in a statute is the meaning
of the same term in any subsequent statute.
The punishment of rape was changed from death to loss of mem-
bers by the statute of William the Conqueror, and thereby the crime
ceased to be felony (2 Inst. ISO;) and so continued until the 13 Edw. 1,
s. 1, c. 34. During all the time previous to this statute if the woman
demanded the man for her husband, it saved him from punishment
(2 List. 180), and Lord Coke says that at common law this election
was confined to the woman (2 Inst. 181.) But on the same page
he says " it is not credible what ill success this act (3 Edw. 1, c. 13)
had," and cites the case of Warren de Henicick (Hil. 6, Edic. \,) who
publicly ravished the daughter of S. de Warton, and "came and
desired to have her as his wife, which was granted by the Justices*
and he was affianced to her in open court."
This state of things led to the 13 Edw. 1, st. 1, c. 34, which amended
but did not repeal, the 3 Edw. 1, c. 13. Therefore they must be
construed together.
The 3 Edw. 1, c. 13, contained two distinct clauses. The first
applied to girls, who were within age- The second to all other
women. The first applied to cases whether by consent or without ;
and this shows that girls within age were capable of consenting, and
that it was not rape where they did ; but this clause rendered their
consent of no avail. Whilst in the latter case the words are " against
her will ; " as in such cases, the woman was capable of consenting.
And thus it is shown that each of the clauses was accurately framed to
meet the cases at which each was directed. It is also perfectly clear
that each clause only applied to the time at which the offence tens com-
mitted ; and did not affect anything that occurred either before or
after that time.
The evil consequences of this statute (as we have pointed out) led
to the passing of the 13 Ed. 1, st. 1, c. 34, which does not repeal the
previous statute. It also contains two clauses ; the first applies
where a man " do ravish a woman married, maid, or other, where she
did not consent neither before nor after." The second where a man
" ravisheth a woman, although she consent after." The first applies
1084 APPENDIX,
where there never is any consent at all ; the second where there is
consent after the rape. It is clear that the words " did not consent
neither before nor after " do not apply to the time of the rape itself, but
actually exclude it. Lord Coke (2 Inst. 433) says " this clause is
intended of an appeal to be brought by the party ravished ; for, if
she consent either before or after, she shall have no appeal; but, if she
consented neither before nor after, then she shall have an appeal, and
there is no law that gives a woman an appeal of rape but this."
(Lord Coke refers to "13 Edw. 3, Coron. 122," which is not in the
Year Books ; as they skip from 10th to 17th Edw. 111.) Lord Coke
adds " Hereby the ancient law concerning the election given to her
that is ravished is taken away." This explains the origin of the
clause, and shows that the words do not apply to the act itself, and
were not introduced in order to define the offence in any respect.
The reasons why the clause does not in terms refer at all to consent
at the time of the rape are that the word '• ravish " at common law
imported that the act was against the will; and the 3 Edw. 1, c. 13, con.
tained the very words " against her will," and that statute and this
must be read together. It w is absolutely necess try to v,se the word u con-
sent,'" as applicable to the time before and after the act ; for it was impos-
sible to apply the words "against the will " to either of those times :
they could only be applied to the time of the act itself. It is mani-
fest that the later statute was very carefully framed upon the for-
mer. The words " a woman married, maid or other " are plainly
substituted for " any wife or maiden of full age, nor any other
woman " in the former statute. And this leads to the inference that
the first clause in that statute, relating to " any maiden within age,''
is not affected in any way by the later statute. So too the words in
the second clause, '■ if he be attainted at the King's suit," plainly refer
to the previous statute, and limit a prosecution by the crown to
cases where there is no suit by any private individual ; and the 6 R.
II st. 1, c. 6, plainly shows that the suit by a private person con-
tinued after the 13 Edw. 1, st. 1, c. 34 ; aud that where the woman
consented after the rape, it saved the man. Cases like that of
Warren de Henwick were completely met by the first clause, which
obviously prevented the man from claiming and obtaining the
woman against her consent.
Lord Coke in his chapter on Rape (3 Inst. 60) clearly considered
the former statutes of the 3 Edw. 1, c. 13, the 13 Edw. 1, statute 1, c.
34, the 6 R. 2, c. 6, and the 18 EL, c. 7, as all existing together; and,
APPENDIX. 1085
■with his usual accuracy, thus states their effect : " Rape is felony by
the common law, declared by parliament, for the unlawful and carnal
knowledge and abuse of any woman above the age of ten years
against her will, or of a woman child under the age of ten years,
with her will or against her will, and the offender shall not take the
benefit of clergy;"' and then Lord Coke refers to the 102 Inst, as to
" what offence this was at common law," which have already been
cited. It is plain, therefore, that Lord Coke put the same construc-
tion as I have done upon the 3 Edw. 1, c. 13, and 13 Edw. 1. st. 1,
c. 34, and there can be no doubt that that construction was right.
Equally clear is it that there was no intention in any way to alter
what was the common law offence by these statutes, or to define the
offence de novo. The alteration of ihe punishment left the offence as
it was at common law.
Indictments for rape have always alleged the offence to be com-
mitted by violence and against the will, and nothing could more
clearly show that proof of both is necessary. The indict
ment runs " the said A. violently and against her u-ill feloniously did
ravi>b." Robbery is exactly similar ; there the indictment runs '• from
the person and against the vrill of tlie^aid A. feloniously and violently
did steal" It seems impossible to draw any distinction between these
forms ; and the definition of robbery is stealing from the person
and " against the will by violence and putting in fear,'' etc. Now both
these offences require the act to be done with violence and against
the will ; and it is quite clear that in robbery there, must be some
violence to the person beyond the force that may be used in taking the
articles ; for no mere taking from the person, even against the will,
can suffice in robbery. It is quite clear that merely taking an
article from a man asleep or drunk wuuld not suffice. And fur the
same reason it would seem that having connection with a woman in
a state of insensibility can not constitute a rape, because there is no
violence ultra the mere connection. In robbery the violence i> the
principle ingredient, and in rape it seems at least to be one new < nmiy
ingredient. Violence to the person has always been an offence ; so
that robbery is in truth compounded of two offences, larcenv and
assault. And it is difficult to understand how a case can amount to
rape where there is no violence ultra the act itself-
It is certain that to obtain an article from any one by fraud
without violence is not robbery ; but if there be both fraud and
violence the crime may be complete.
1086 APPENDIX.
Nothing could more clearly show that violence to the person is
essential to the crime of rape than the statute of William the Conque-
ror, and it is clear from it that the violence must be such as to overcome
the resistance of the woman ; even in the case of an attempt there
must be a struggle, luctamen. It need hardly be added that a mere
attrectation that is sufficient to constitute an assault in point of law
is insufficient, unless indeed there were an overpowering terror
otherwise created.
Speaking of an appeal of rape at common law Bracton says :
"cum virgo corrupta fuerit et oppressa, statim cum factum recens fuerit
cum clamore et hutesio debet accurrere ad villas vicinas, et ibi injuriam
sibi illutam probis hominibus ostendere, sanguinem et vestes suas sanguine
tinctas et vestium scissuras. Lib. Ill, c. 28, /. 147. Lord Hale cites
this passage (1 Hale, 632) ; and evidently fully approves of it.
{Ibid 633, 4). Nothing could more clearly prove that from the time
of Bracton till Lord Hale wrote the act must have been done both
violently and against the will in order to constitute the crime. And
Lord Hale fully justifies my views as to the dangers to which
innocent men may be subjected by false charges of rape.
In R. v. Jackson, R. & R. 487, the prisoner was convicted of a
burglary with intent to commit a rape. The prisoner got into the
■woman's bed as if he had been her husband, and was in the act of
copulation when she made the discovery, and immediately, and
before completion, he desisted. The jury found that he entered the
house with intent to pass for her husband, and to have connexion
with her if she did not discover the mistake ; but not with the
intention of forcing her if she made that discovery. The question
was reserved whether the connexion with the woman, whilst she was
under that mistake, would have amounted to rape. Four of the
judges thought that the having carnal knowledge of a woman whilst
she was under the belief of its being her husband would be a rape ;
but the other eight judges thought that it would not ; and Dallas, C
J., pointed out forcibly the difference between compelling a woman
against her will, when the abhorrence, which would naturally arise
in her mind, was called into action, and beguiling her into consent
and co-operation. This case was not argued, nor was any case on the
definition of rape referred to ; and it was decided as if the only
question was as to consent and that no violence was necessary. It is
very difficult to see how a man can be guilty of a rape, who has no
intention of forcing a woman ; and equally so how a man can be
APPENDIX. 1087
guilty of a burglary with intent to commit a rape under such
circumstances. It has been held that there must be an intent to
have connexion at all events ; and notwithstanding any resistance
ou the part of the woman. R. v. Lloyd, 7 C. d- P., 315, per Patteson,
J. The observations of Dallas, C. J., afford very sound grounds
why the common law offence was confined to ca»es where the act was
against the woman's will.
In R. v. Saunders, 8 C. dbP., 265, the prisoner was indicted for a
rape on a married woman. Being asleep in bed she was awoke by
a hand passed round her, which turned her round, and she, suppos-
ing it to be her husband, made no resistance to that or to the
connexion that immediately followed, but while the connexion was
going on, she perceived by the prisoner's breathing that it was not her
husband, and she immediately pushed him off her. Gurney, B.
" I am bound to tell you (the jury) that the evidence in this case
does not establish the charge contained in this indictment as the
crime was not committed against the will of the prosecutrix, as she
consented, believing it to be her husband ; but if you think that
that was the case, and that it was a fraud upon her, and that
there was not consent as to this person, you must find the pris-
oner guilty of an assault." Gurney, B., was a great criminal
lawyer, and his words here are very correct.
In R. v. Williams, 8 C. tfc P. 286, the prisoner was indicted for
a rape upon a married woman, and it was opened (according to
the statement of the prosecutrix in the depositions) that the pris-
oner had got into bed with the prosecutrix whilst she was asleep,
and had penetrated her person hefore she was aware that it was
not her husband, and that he persisted in completing his purpose
notwithstanding her resistance after she had discovered that he was
not her husband ; and it was submitted that this distinguished the
case from R. v. Jackson. But the prosecutrix stated that she had
allowed the prisoner to have connexion with her believing him
to be her husband, and that she did not discover who he was
until the connexion was over. Alderson, B. : " that puts an end to
the capital chaige. R. v. Jackson, is in point." It was then urged
for the prisoner that to constitute an assault there must be resistance
in the party assaulted. Alderson B. : 'In an assault of this nature
there need not be resistance — the fraud is enough."
In R. v. Clarke, Dears. 397, the prosecutrix, having fallen asleep,
was awakened by a man in bed with her, drawing her towards
1088 APPENDIX.
him, and having connexion with her ; she assented to the connexion
in the belief that the man was her husband. She afterwards discov-
ered that the man was not her husband The jury found that he
intended to have connexion with her fraudulently, but not by force ;
and if detected to desist. Upon a case reserved the case of R. v.
Jackson was questioned, but Jervis, C J., said : " We have conferred
with several of the other judges, and we think we cannot permit this
question to be opened now, but are bound by the decision in R.
v. Jackson.'1'1 One might have thought that this case at last had con-
clusively settled that fraud is not equivalent to force in cases of rape.
In R. v. Camplin, 1 Den. 89 ; 1 G. & K. 746, the prisoner was
convicted of a rape on a girl of thirteen years of age. He had made
her quite drunk, and when she was in a state of insensibility took
advantage of it, and violated her. The jury found that he gave her
the liquor for the purpose of exciting her, not with the intention of
rendering her insensible, and then having sexual intercourse with
her. Upon a case reserved it was contended for the prisoner that
there must be actual force and an opposing will on the part of the
woman. But ten judges held the conviction right, and three thought
it wrong. In the course of the argument, Patteson, J., said : " if a man
knocks a woman down, and makes her insensible, and then has con-
nexion with her while she is insensible, according to you that would
be no rape, because she did not resist and evinced no opposing will."
This is exactly like the case where a man is knocked down and strip-
ped of his property while senseless, which is clearly robbery. — 2 Russ.
C. & M. 109, and the violence has been used in order to eifect the object
and to prevent resistance. Alderson, B. , added, '* In cases of fraud the
woman's will is exercised under the influence of fraud ; but in the
case put by my brother Patteson there is force. The resistance was
impossible, owing to the blow given by the prisoner. Here it was
rendered impossible by the liquor which he had administered." In
the addenda to 1 Den. C. C- XVI, the reasons for this decision are
given by Parke, B., " of the judges who were in fav^r of the convic-
tion, several thought that the crime of rape is committed by violating
a woman when she is in a state of insensibility, and has no power over
her will, whether such state is caused by the man or not, the accused
knowing at that time that she is in that state ; and Tindal, C. J., and
Parke, B., remarked that in a statute of Westminster 2, c. 34, the
offence of rape is described to be ravishing a woman " where she did not
consent," and not ravishing against her will." It is very difficult to con-
APPENDIX. 1089
ceive a more erroneous statement. "We have shown that that statute
did not define the crime at all. The words are not merely " where she
did not consent," but " where she did not consent, neither before nor
after ; " and, therefore, do not apply to the act itself, and the 3 Edw.
1, c. 13, which does apply to the act, and mitst be construed together
with this act, has the words "against her will." If the statute had
been referred to in the argument, the explanation we have given
might have been offered, and it would have been seen that the statutes
when properly considered have a totally different meaning.
The note proceeds, " But all the ten judges agreed that in this case,
where the prosecutrix was made insensible by the act of the prisoner
and that, an unlawful act, and when also the prisoner must have
known that the act was against her consent at the last moment
that -he was capable of exercising her will, because he had attempted to
procure her consent and failed, the offence of rape was committed. The
other three judges did not think that this could be considered as
being sufficiently proved." In neither Den. G. G. nor C. cfc K. is there
anything to warrant the statement underscored.
But in passing sentence on the prisoner, Patteson, J., said : " It
appeared upon the evidence that the prosecutrix refused her consent
so long as she had sense or power to express such want of consent."
1 C. <L- K. 749.
And the very learned judge added : " Your case, therefore, falls
within the description of those cases, in which force and violence
constitute the crime ; but in which fraud is held to supply the want
of both." We are quite unaware of any Buch cases ; it is clear that
fraud does not supply the force and violence necessary to constitute
robbery ; and even in larceny where a chattel is obtained by fraud
from any one who has power to part with the property in it, a
trespass is not committed, and consequently the offence is not even
larceny.
In R. v. Page, 2 Cox, 33, Alderson, B., stated the decision in
Camplin's case thus: ■ The judges in the affirmative thought that on
these facts it must be presumed that this was contra voluntatem, it
being clear that the woman had not consented when he began to ad-
minister the liquor, and that she never did actually consent at all ; that
his having connexion with her when insensible was, therefore, clearly
contra voluntatem ultimam, which must be, as against him, presumed
to continue unchanged. Denman, C. J., Parke, B., and Patteson,
J., thought that a connexion without the consent of the woman was
UUU
1090 APPENDIX.
rape, e. g., in the case of a woman insensibly drunk in the streets,
not made so by the prisoner. And in R. v. Page, where the prose-
cutrix stated that she usually slept with her father, and, on waking
from sleep, she found him having connexion with her, it was urged
that Camplin's Case supported the position that if the prisoner had
connexion with the girl while she was in such a state as to be inca-
pable of giving consent, it was rape. Alderson B., said : " I do not
understand that case to have gone so far as you affirm. It only
decided that where the state of unconsciousness was caused by any
act of the prisoner, connexion with the woman in such a state would
constitute the offence. The wine was offered to her by the man in
that case, and there was at any rate evidence to show that he had
induced her to take it. I concurred in that judgment only on that
ground."
In R. v. Ryan, 2 Cox 115, the prosecutrix was in a state not to
understand right from wrong ; but her general habits were those
of decency and propriety, and Piatt, B-, left the question to the jury
whether she was likely to have consented ; and added that " if she
was in a state of unconsciousness, whether it was produced by any act
of the prisoner or by any act of her own, the prisoner having con-
nexion with her in that state would be guilty of rape. If you believe
that she was in a state uf unconsciousness, the law assumes that the
connexion took place without her consent." So on the trial for the
rape of an idiot girl, Willes, J., directed the jury that if they were
satisfied that the girl was in such a state of idiocy as to be incapable
of expressing consent or dissent, and the prisoner had connexion with
her without her consent, he was guilty ; but a consent produced by
mere animal instinct would prevent the act from being a rape. Anon.
stated in Bell C. C. 70.
In R. v. Fletcher, Bell, C. C. 63, the prosecutrix was incapable of
distinguishing right from wrong, and the prisoner met her, and was
seen to have connexion with her. She was not shown to have offered
any resistance, though she did exclaim whilst the prisoner was in the
act that he hurt her, and on the prisoner rising from her and her
getting up she made a start as if to run away. The jury found that
she was incapable of giving consent from defect of understanding . Upon
a case reserved it was contended that there must be either force or
fraud, and that there was neither in this case ; and the cases of R. v.
Jackson, etc.,were referred to; on which Lord Campbell, C. J., said: "In
those cases it was at first held that fraud supplied the place of force.''
APPENDIX. 1091
This is certainly a mistake. There are no such decisions in the hooks,
and none are referred to in R. v. Jackson, which they would have been
if they existed and had not been reported. Lord Campbell, C. J., also
asked " what do you say to the definition of rape in the 13 Edw. 1,
c. 34 1 " The answer was that that section imports the definition of
the word rape into the word ravish, and it doe* not alter the common
law definition of rape. But, strange to say, the previous statute of
the 3 Edw. 1, c. 13, was never referred to in the case. Lord Campbell,
C. J. : " The question is what is the real definition of the crime of
rape, whether it is the ravishing a woman against her will, or without
her consent- If the former is the correct definition, the crime is not
in this case proved ; if the latter, it is proved. Complin's case seems
to me really to settle what the proper definition is ; and the decision
in that case rests upon the authority of an act of Parliament. The
statute of Westminster 2, c. 34, defines the crime to be where "a
man do ravish a woman, married, maid or other, where she did not
consent neither before nor after ; 2 Inst. 433. We are bound by that
definition, and it was adopted in Camplin's case, acted upon in
Ryan's case, and subsequently in a case before my brother Willes."
It is perfectly clear that this decision wholly rests upon the ground
that the 13 Ed. 1, c 34, defines the crime of rape, and a more
erroneous judgment never was delivered. It has been abundantly
ghown that that statute contains no definition of rape at all ; that the
words relied on do not apply to the act of rape itself ; and that the 3
Ed. 1, c. 13, and 13 Edw. 1, c. 34, must be construed together; and as
the former has the words " against her will " applied to the act itself,
the act must be done against the consent of the woman.
Nor is it to be omitted that the court wholly failed to notice that
there was no evidence of any violence or of any fraud that could
supply that defect ; and even the 13 Edw. 1, c. 34, in terms requires
the connexion to be " with force; " and it is perfectly clear that the
statute renders it essential that there should be force beyond that
which is exerted merely in the connexion ; for the words are
" ravisheth'' " with force ; " and the word u ravisheth "at all events
includes everything that is incident to the connexion. The force neces-
sary to constitute the crime is force used to overcome the resistance
ot the woman, not the mere force used in the having the connection .
in the same way as in robbery there must be force beyond the force
used to remove the chattel.
Equally remarkable is It that the court never noticed that Lord
1092 APPENDIX.
Coke, Lord Hale, and others all wrote upon the statutes, and all
hold that in order to constitute a rape the act must be done against
the will of the woman. On no subject is there a greater concurrence
of opinion ; and on no point is there an opinion entitled to greater
weight. It cannot be pretended that any judge of the present day-
is abler than Lord Coke or Lord Hale, and both were very much
more conversant with our old statutes than anypudge in our time ; and
Lord Hale was an infinitely better criminal lawyer than any judge
of recent times; but stranger still is it that Lord Campbell cites the
2 Inst. 433 for the clause in the statute, and never notices Lord
Coke's note on it, which shows how erroneous his judgment was.
Lord Campbell, C. J., also added : "It would be monstrous to
say that if a drunken woman returning from market lay down and
fell asleep by the road side, and a man, by force, had connexion
with her whilst she was in a state of insensibility and incapable of
giving consent, he would not be guilty of rape." I totally dissent
from this obiter dictum- Substitute for "had connexion with her"
the words " took a purse from her," and the fallacy will at once
appear. No one ever dreamt of such a case being a robbery, and
yet it is a bad offence. The Greeks considered it so infamous to
steal from a dead body that they had a proverb to denote the dis-
graceful nature of the act, viz., u he would even plunder a dead
man." But disgraceful acts ought not to be included in we known
crimes, however bad they may be, unless they clearly fall within
them ; and it is to be feared that these cases are but too strong
examples of the proverb that "bad cases make bad law." Some of
the dicta in them naturally enough sprang from the indignation felt
at the acts that had been done, and the attention seems to have been
too exclusively confined to the particular cases. It seems never to
have occurred to any one to consider what the consequences might
be to innocent persons, and the door that might be opened to the
fabrication of false charges. A very long experience in criminal
courts satisfies me that the majority of charges of rape are false, and
that innocent persons are put in great peril by them ; and for
the most part no one except the man and woman are alleged to be
present, and consequently it is open to the woman to fabricate any
story she likes without fear of contradiction by any one except the
prisoner ; and the stories that have turned out to be fabrications
may be said to have culminated in a case, in which the prosecutrix, a
nice looking girl of under age, told as clear a story as ever was heard
APPENDIX. 1093
in examination in chief; but Gurney, B., who had taken down her
examination in shorthand, desired her to repeat her story ; which
she did word for word as it was on his notes, on which that great
criminal lawyer at once directed an acquittal. It is in consequence
no doubt, of the prevalence of false charges that it has always been
expected that marks on the person of the woman should have been
seen ; and this expectation was, no doubt, founded upon the belief
that if the woman was true to herself, and resisted as she ought, her
tender flesh would bear clear proof that violence had been offered to
her in order to overcome her resistance. Of course there may be
cases where the absence of marks may be explained ; as by present
fear of death or the intimidation of numbers. But the holding that
fraud is equivalent to force open3 the way to charges where no
marks are to be expected. How very easy would it be to utilize
Carnplin'i Case, in support of a false charge.
Suppose a man and woman are drinking together in a room, and
she consents to connexion, and during it some one waBis unexpect-
edly into the room, and finds them in the act, what would be more
easy — nay what would be more probable than that she would charge
the man with a rape ?
It may well be asked, also, if fraud is equivalent to force and want
of consent, how far is it to be extended ? A married or single man
induces a woman to yield to his wishes by a promise to marry her.
No one can doubt that this is a gross fraud ; but is it a rape ? A
man administers drugs to a woman and thereby so excites her pas-
sions as to yield to his desires ; no doubt it is a gross fraud, but, is it
a rape ? Is it not turning cases of seduction into rape ?
There is a class of cases which seem to bear extremely strongly
upon this point. A man being lawfully married to a wife still
living induces a maiden to marry him. Here from first to last
he must have acted fraudulently with intent to obtain the posses-
sion of her person ; and her consent to the marriage and to the
connexion must have been obtained by the fraud ; and she must
have consented to the connexion under the honest belief that he was her
husband ; whereas he was no more her husband than the stranger in
Jackson's Case, etc. The bigamy acts plainly prove that cases of
bigamy never have been considered as cases of rape. Consider also
the Abduction Statutes, 3 Hen. 7, c. 2, etc.
Lord Coke tells us that Isabel!, late wife of John Botiler, by her
petition showed how William Pull, by duress and menaces of
1094 APPENDIX.
imprisonment enforced her to marry him, and by color thereof
ravished her, for which she prayed an appeal, and it was granted her.
(3 Inst. 60, citing Rot. Pari. 15 H. 6, nu. 15}. And also that an
appeal was granted in the similar case of dame Joan Beamont against
E. Lancaster, who had married her against her will and ravished her.
(Rot. Pari. 31 H. 6, nu. 72.) In these cases the appeal was specially,
given hy Parliament, and they strongly tend to show that a marriage
procured by fraud alone would not be rape, but that there must
be force in order to constitute the crime ; and the 31 H. 6, c. 9, which
was passed in consequence of the preceding case, in order to give a
remedy to women forced to enter into bonds, tends the same way.
In E. v. Fletcher, 14 Law T. R. 573, the prisoner was tried for a
rape, and the question reserved was whether the case ought to have
gone to the jury, there being no evidence, except the fact of the con
nexion, and the imbecile state of mind of the girl. Of the fact of
connexion there was the fullest proof, for it was admitted by the
prisoner. There was, however, no evidence that the connexion was
against the will of the girl. The indictment charged the prisoner
with having committed the offence against her will and without her
Consent. The judges were all of opinion that some evidence of that
allegation as a fact should have been given ; and that there was not
that sort of testimony, on which a judge would be justified in leaving
the case to a jury to find a verdict. " We are unanimously of opinion
that there was here no evidence to establish either that the connexion
was against her will or without her consent." And Pollock, C. B.,
added : " I wish to add for myself that I think the act of Parliament
(24-25 V., c. 100, ss. 50, 51,} which makes sexual connexion a crim-
inal offence in the case of children of tender years has a tendency
to throw light upon the case before us. Here the contention on
the part of the crown must be that an idiot is incapable of
consent ; but it may be said in answer that the same cause, which
required an act of Parliament to make the mere fact of connexion
a criminal offence in the case of children of tender years would
require an act of Parliament in the case also of idiots." The same
remark arises upon the 1 Edw. 1, c. 13, as to maidens within age.
The case of R. v. Pressy, 17 Law T. 295, only decided that the pris-
oner being charged with having committed a rape on the prosecutrix
against her mil his answer, *■ Yes I did," was evidence to go to the
jury ; and so it clearly would have been, if the crime must be com-
mitted against the will- In R. v. Barrow, 19 Law T. 293, the prose-
APPENDIX. 1095
cutr'x was in bed, and her husband beside her. She had her baby in
her arms, and was between waking and sleeping ; but was completely
awakened by a man having connexion with ber, and pushing the
baby out of her arms. She thought it was her husband, and she
could count five after she completely awoke before she found it
was not her husband. Kelly, C.B., thought, especially on the autho-
rity of the judgment of Lord Campbell in R. v. Fletcher, that
the case was made out ; as it was sufficient that the act was done
by force and without consent before or afterwards ; that the act
itself, coupled with the pushing aside of the child, amounted
to force, and there was certainly no consent before and the reverse
immediately afterwards. But on a case reserved the convi.-tion
was quashed. Bovill, C. J., " It dees not appear that the prose-
cutrix was asleep or unconscious at the time when the first act of
connexion was committed. What was done was, therefore, with her
consent, though that was obtained by fraud. We are of opinion that
this case comes within that class of cases, in which it has been decided
that where, under such circumstances, consent has been obtained by
fraud, the offence does not amount to rape." This case, therefore, is
another strong confirmation of the class of cases, of which R. v.
Jacksim was the first ; and it is a distinct authority against the
doctrine that in cases of rape fraud amounts to force. See R. v.
Sweenie, 8 Cox, 223, as stated in 2 Heard's Leading Criminal Cases,
259.
In R. v. Barratt, 29 Law T. 408, the prosecutrix was blind and
out of her mind ; if told to he down she would do so, and she had
been told to lie on a couch until her sister returned. The prisoner
knew her state, and he was seen lying on her on the couch, and on
going into the room her father found the prisoner standing up at
the end of the couch buttoning up his trowsers, while she was lying
quietly on the couch. The jury were directed that "if the prisoner
had connexion by force with the girl, and if the girl was in such an
idiotic state that she did not know what the prisoner was doing, and
the prisoner was aware of her being in that state, they might find
him guilty of rape ; but if the girl, from animal instinct, yielded to
the prisoner without resistance, or if the prisoner, from the girl's
state and condition, had reason to thiuk the girl was consenting, they
ought to acquit him." The jury found him guilty of an assault
with intent, etc. The case was argued only on the part of the crown —
f& course which ought never to be allowed.) It was held that the
1096 APPENDIX.
conviction was right, upon the ground that the prosecutrix was
incapable of giving her consent, and rests entirely upon the decision
of J?, v. Fletcher, Bell, C. C. 63.
In R. v. Flattery, 36 Law T. 32, the prisoner professed for money
to give medical and surgical advice, and the prosecutrix, being in
ill-health, went with her mother to consult him. The prisoner put
several questions to the mother as to the condition of the daughter,
and made some examination of her person. The prisoner then
fraudulently, and knowing that he was speaking falsely, told the
mother, in the hearing of the daughter, that " it was nature's string
wanted breaking," and asked if he might break it. The mother
replied that she did not know what he meant, but that she did not
mind if it would do her daughter any good. The prisoner went
into an inner room with the girl, and there had connexion with her
she making but feeble resistance, believing that the prisoner was
merely treating her medically, and performing a surgical operation
to cure her of her "illness and fits," and submitting to his treat-
ment solely because she so believed. Unless such submission in law
constitutes [consent, there was no consent. It was held, on a case
reserved, that the offence was rape, upon the ground that there was
no consent to the prisoner having connexion with the girl. The
decision proceeded entirely on the case ofi2. v. Camplin, and the
erroneous opinion that the 13 Ed. 1, c. 34, defined the crime of
rape. R. v. Barrow was much questioned ; and Kelly, C. B., said :
" I lament that it has ever been decided to be the law that, where a
man obtains possession of a woman's person by fraud, it does not
amount to rape."
There had been previous cases where indictments for assault had
been held to be supported by proof of the like false, pretences of
medical or surgical treatment, by which females had been deceived
and suffered their persons to be handled. (R. v. Rosinski, R. & M.
C. C. 19,) or otherwise indecently dealt with (R. v. Stanton, 1 C. &
K- 415) or connexion to take place (R. v. Case, 1 Den. 580.) In
this case Wilde, C. J., said, the cases showed that ** where consent is
caused by fraud, the act is at least an assault, and perhaps amounts
to rape." The cases referred to were R. v. Saunders, 8 C. & P. 265;
and R- v. Williams, 8 C. & P. 286 ; and, instead of showing that the
act is rape in such cases they are clear decisions to the contrary.
Some expressions appear to have been used equivocally in these
cases.
APPENDIX. 1097
Thus the expression "incapable of consent " has been applied as
well to the case where the woman was actually senseless as where she
was devoid of reason, but possessed of her animal propensities.
There can be no doubt, that many unfortunate persons, devoid of
sufficient understanding to decide between right and wrong, are sub-
ject to very strong animal passions, which would lead them to assent
to, if not actually to court, connexion ; and it cannot be contended
that connexion with such persons is a rape. In R. v. Barratt it was
rightly left to the jury that the girl, though out of her mind, might
yield from animal instinct. But in R. v. Fletcher, Bell C. C. 63 ,
the jury were erroneously told that if * the girl was incapable of
giving consent, or of exercising any judgment on the matter, they
might convict ;" and they found that the girl was incapable of giving
consent from want of understanding. Upon such a direction and
finding the verdict of guilty was clearly erroneous. The case is exactly
like that of very young children, who can consent to connexion,
though they are incapable of judging of the nature and quality of
the act. In R. v. Read, 1 Den. 377, the jury found that a girl
of nine years of age assented, but that " from her tender age she did
not know what she was about ; " and it was held that the prisoner
could not be convicted of an assault. So where the girl was too
young to be examined ; Patteson, J., said " we know that a child
can consent to that which, without such consent, would constitute
an assault." R. v. Cockburn, 3 Cox, 543. This great judge also
said " my experience has shown me that children of very tender age
may have very vicious propensities." See R. v. Johnson, 12 Law
T. 503.
A woman may be quite incapable of exercising reasoning power,
and yet be perfectly capable of exerting her natural appetites ; and
consequently the want of the former in no way negatives the
existence of the latter. The verdict, therefore, in R. v. Fletcher,
Bell, C. C, 63, was clearly wrong.
Nor can there be any doubt that in many cases of unsound mind
the animal passions are extremely strong ; and in the absence of
reason to control them, the reasonable inference is that they will be
gratified whenever an opportunity occurs, and when there is no
evidence to the contrary, it would seem that the fair presumption is
that that is the case. This point, though one of fact, deserves more
consideration than it has received.
Several cases have turned on the distinction that has been taken
1098 APPENDIX.
between consent and submission. In R. v. Day, 9 C. & P. 722,
Coleridge, J., said, " There is a difference between consent and sub-
mission. Every consent involves a submission ; but it by no means
follows that a mere submission involves a consent. It would be too
much to say that an adult submitting quietly to an outrage of this
description was not consenting ; on the other hand the mere sub-
mission of a child, when in the power of a strong man, and most
probably acted upon by fear, cau by no means be taken to be such a
consent as will justify the prisoner in point of law." And it was
left to the jury to say " whether the submission of the prosecutrix
was voluntary on her part, or the result of fear under the circum-
stances in which she was placed." See also R. v. Jones, 4 Law. T.
154. R. v. Case, 1 Den. 580. An important question arises occa-
sionally in these cases in addition to the question whether the
woman submitted, but did not consent. It is " did the man bond
fide believe that she was consenting ? " In R. .v Flattery, Denman,
J., said " there is one case where a woman does not consent to the
act of connexion, and yet the man may not be guilty of rape, that
is where the resistance is so slight and her behavior such that the
man may bond fide believe that she is consenting." And, a fortiori
that may be the case where the woman submits, and makes no
resistance at all. In R. v. Barratt, where the girl was blind and
out of her mind, and there was no evidence whatever of resistance,
the surgeon proved that there were no external marks of violence,
but that in his opinion there had been recent connexion, and he
thought she had been in the habit of having connexion, there would
seem to have been cogent evidence that the animal passions of the
girl had led to the connexion, and the case ought to have ended in
an acquittal
It may admit of question whether the distinction drawn in R. v.
Flattery, between consent obtained by fraud from a married woman,
and consent obtained by fraud from a girl to what she supposes is
medical treatment, can be supported. In the one case the consent
is given to a connexion with a man, as to whom the woman is com-
pletely deceived- In the other it is given to an act, as to the nature
of which she is completely deceived, and in both the act done is
totally different from the act to which the assent was given. In
each case the power to do the act is obtained by fraud ; and in each
the nature and quality of the act is totally different from what the
woman supposed it would be. The intent, the object, the fraud,
APPENDIX. 1099
and the end obtained are all the same in both cases ; then how is it
possible to draw any sound distinction between them ? False pre-
tences are very similar ; in them the only material points are
". were these false pretences ? " '' Were they fraudulently used ? "
"Was the chattel obtained by them ? " Every kind of false pre-
tence is sufficient, and no distinction is ever drawn between one false
pretence and another. They are merely the means by which the
fraud is effected, and it is quite immaterial what they are, for the
fraud is the gist of the offence.
That Carnplin's case was not a well considered decision is plain
from the different grounds assigned for the judgment by Parke and
Alderson, B. B., and Patteson, J. ; and the numerous cases that have
since been reserved prove not only that it has not been considered
satisfactory, but also that it has given rise to many difficulties ;
which of itself is sufficient to throw doubt on any decision. "Whether,
however, if the mistake, on winch it was founded, if pointed
out, would induce our judges to come to a contrary decision, it is
impossible to predict. All that can be said is that, as the judges in
Complin's Case and Fletcher's Case, Bell, C. C. 63, held that they were
bound by one statute, the judges ought to consider themselves bound by
the two statutes to decide according to the true construction of their
provisions. That the law on this point is in a very unsettled state
cannot be doubted ; and where that is the case, especially in so
penal a matter, it would be well to remember that nusquam major est
servitus quara ubi jus aut vagum aut incognitum.
20th February, 1878.
INDEX.
ABANDONING. . PAGE
Child under two years of age 172
Abatement.
No indictment to be abated by reason of plea of 776
Remarks on 777
Abdcction.
Of heiress against her will, from motives of lucre 208
Fraudulent, of an heiress against the will of her father, etc-.- 208
Offender incapable of taking property 208
Property to be settled by court 208
Forcible, of any woman with intent to marry 211
Of girl under 16 years of age 212
Abettor. (See Aiders and Abettors.) 6
Abolition.
Of punishment by solitary confinement and of the pillory. ..1068
Of benefit of Clergy 712
Abominable crime.
Punishment for 66
Attempting to commit, or assaulting with intent to commit-. 67
Sending letter threatening to accuse of 617
"What is, in such case 617
Abortion.
Administering drugs, etc., or using instruments to procure. 218
Procuring drugs or instruments to be so used 220
Immaterial whether woman be with child or not 220
Remarks on 219
Absence.
Of wife or husband for seven years, second marriage not
bigamy 76
Acceptance.
Of bill of exchange, forgery of 512
Accessory.
Act respecting 23
1102 INDEX.
Accessory — (Continued.) page
Before the fact , 13
Must be absent when offence is committed lg
Procurement of felony by 14
Joint conviction of several ] 5
Only in felonies 15
Cannot be, in high treason 15
In manslaughter 16
May be indicted although principal is not tried, or tried and
acquitted 16
After the fact 18
Suffering principal to escape not liable as 19
Other omissions 19
Employing another to assist felon 19
Wife receiving from husband not punishable as 19
But this applies to no other relation 20
Notice of commission of felony by principal necessary 21
Can be none in high treason 20
Nor in offences under felony 21
May be indicted though principal not convicted 21
Receiver of stolen goods an 21, 658
To murder, punishment of 142
In manslaughter 117
May be tried by any court that could try principal felony.. 657
To offence under Forgery Act, place of trial of 657
Accomplice.
None in perjury 56
Rules as to evidence of 898
Action.
Qui tarn, in Quebec 638
Address of counsel.
On criminal trial, how regulated 835
Admiralty.
Of England, place of trial of offences committed within the
jurisdiction of 646
Remarks on this section 647
Admission.
By person accused, prosecutor may give in evidence 689
Adulterer.
Larceny by , 250
Advertisement.
For recovery of stolen property 460
INDEX. 1103
Affidavit. page
Unlawfully administering, penalty 1
Exceptions 1
In insurance cases 2
Perjury by false statement in 41
In one Province to be used in another 41
In proceedings before judge 42
Affirmation.
By Quaker, etc, instead of oath. (See Affidavit.) 806,901
Affray.
What constitutes an 36
Agent.
Commission of crime by 6
For detection of employer the like 7
Frauds by 407
Conversion by, of money, etc, entrusted to his care 407
Selling without authority valuable security so entrusted .... 407
Not to apply to trustee or mortgagee 408
Fraudulently selling, etc., property entrusted to him for safe
custody 409
Selling property under power of attorney for his own benefit. 409
Obtaining advances on property of principal without au-
thority ". 410
Aggression.
Foreign, trial by court martial for 31
Or other competent court 32
Aiders and Abettors.
Presence at commission of offence necessary. 7
Otherwise participators are accessories 13
But not during the whole time 8
Participation necessary 8
Inciting to suicide <j, 116
Unlawful combination 10
Murder by duelling 11, 113
Persons present at prize fight 11
May be tried before principal 12
Or if principal is acquitted 12
When indictable as priucipal in first degree 12
In misdemeanors 29
In offences punishable on summary conviction 29
In unlawful solemnization of marriage, etc 75
In manslaughter 117
1104 INDEX.
Alien. page
Marriage by, out of Canada not bigamy 76
Not entitled to jury de medietale Ungues 806
Allocutos.
What is 974
Omission of in capital cases, ground for writ of error 974
Alteration.
Of any document, when forgery 488
Animals.
Killing, with intent to steal carcass 293
Domestic, stealing 293
Amendment.
Of indictment for stealing ores, etc., as to ownership of
property 736
For variance between allegations and evidence 916
Or after plea of misnomer, etc 776
Of formal defects in indictments 778
Greaves' MSS. note 785
Remarks 918
Greaves' MSS. note on 932
Appeal.
From order of justice for restoration of mined gold, etc,
discovered by search warrant 683
And new trials, proceedings on 978
May be to supreme court 979
No appeal to any court of Great Britain 979
Remarks 980
Appearance.
Of accused, proceedings to enforce 678
Justice may issue a warrant 678
Or a summons 678
As to felony committed on the high seas 678
Warrant to apprehend person against whom an indictment is
found 679
If warrant is to be issued in first instance information to be
on oath 680
And so in case of summons unless otherwise provided 680
Nature and service of summons 680
Proceedings if summons not obeyed 680
INDEX. 1105
Appearance — (Continued.) page
Proceeding if defendant is beyond the jurisdiction of the
justice 681
Proceedings on 685
Of witness, warrant for .... ..... 686
Apprehension.
On charge of treason, when warrant shall issue for 31
Of offenders, procedure 664
Without warrant, by an officer in certain cases 664
And by any person, in certain other cas*s 664
By person to whom property is offered for sale 664
Caught in the act, in the night time 664
Lying or loitering in the highway during the night 665
Not to be detained after noon of following day 665
Committing coinage offence 665
Remarks 665
In district where offence not committed, proceedings 693
Apprentice.
Neglect to provide food, etc., for 168
Maliciously causing bodily harm to. whereby life or health
is endangered 168
Arms.
Loaded, what are in Offences Against the Person Act 141
Arraignment.
Of prisoner indicted, may be without writ of habeas corpus.. 696
Arrest.
Without warrant for contempt of court 670
Time, place and manner of 671
Arrest of judgment 990
Arson.
Setting fire to ship with intent to murder. 152
To churches, etc 558
To dwelling house, any person being therein 561
To house, outhouse, etc 562
Railway station, etc 565
Queen's dock yards, etc 566
1106 INDEX.
Arson — {Continued-) page
Any public building 566
Any other building 566
Goods in any building 568
Buildings, attempt 570
Forest, tree, etc., by negligence 571
To crops, etc 578
To m ines , 585
To ships 600
Art.
Malicious injuries to works of 596
Assault.
With intent to commit sodomy 67
To commit indictable offence 184
To prevent apprehension or detainer 184
To commit rape 197
To rob 315
Resisting revenue officers 184
Obstructing execution of process with intent to rescue goods
taken 184
Occasioning actual bodily harm by 184
Common , punishment for 184
Indecent, on any female 207
Indecent, on a male 67
By person armed, with intent to rob 331
Verdict of, in cases of felony including 868
Remarks ou this clause 868
With intent to rob, verdict of on trial for robbery 882
Costs on conviction for 956
In pursuance of trade combination 625
To prevent person buying grain, etc 627
Or working on ship 627
Assembly.
For religious worship, etc., punishment for disturbing 64
Assembly, unlawful 33
(See Unlawful Assembly.)
Assizes.
In Ontario, commission to judge of. ] 024
Attainder.
Plea setting forth when allowed 803
Effect of .....1069
INDEX. 1107
Attempt. page
Conviction of, on indictment for sodomy 67
To commit sodomy, punishment for 67
To murder by poison 147
By destroying building with gunpowder 152
Setting fire to ship with intent to murder 152
Administering poison with like intent 1 52
To murder ly shooting at, or drawing trigger 152
To drown, suffocate or strangle with intent to murder 152
To murder by any other means 157
To maim, disfigure, etc 158
To choke, etc., with intent to commit felony 166
To administer chloroform with like intent 167
To commit rape 197,202,203,861
To have carnal kuowledge of girl under 12 207
By lessee of mine, to defraud Her Majesty, etc 314
Verdict of, on trial for felony, etc 854
Non-liability, for after trial for commission of offence 863
Attorney.
Conversion to his own use of money, etc., entrusted to hia
care 407
Selling without authority valuable security, etc-, so entrusted 407
Fraudently selling, etc., property entrusted to him for safe
custody 409
Selling property under power of attorney for his own benefit 409
Attorney U-exeral.
No prosecution of trustee for fraudulently appropriating pro-
perty without consent of , 411
Autrefois Acquit. Autrefois Convict.
What is sufficient to state in plea of 791
Form of plea of autrefois acquit 792
Form of replication , 794
Greaves' MSS. note on 802
Bail.
Forging recognizance of 527
When justice may admit to 691
And when superior or county court judge 692
In case of treason or capital felony 692
Warrant of deliverance on admission to 692
1108 INDEX.
Bailee. page
Larceny by 281
Bailment defined 283
Division of bailments in Coggs v. Bernard 284
Bank.
Cashier, etc, embezzling from 407
Making or having mould for making, paper with name of
any 508
Banker.
In Larceny Act, what is 280
Frauds by 407
Conversion of money, etc., entrusted to his care 407
Selling without authority valuable security, etc., so entrusted 407
Fraudulently selling, etc., property entrusted to him for safe
custody 409
BankNote.
Forging 503
Forged, purchasing or having in possession, knowing same
to be forged 505
Making, or having moulds for making, paper for 506
Engraving, etc., plate for 507
Bank officer.
Making out false dividend warrants 495
Stealing or embezzling by 407
Bank post bill.
Forging 503
Forged, purchasing, etc., knowing same to be forged 505
Baptism.
Register of, forging 527, 528
Making false entry in .527, 528
Barratry.
Casting away ship, with intent to murder 152
Maliciously 600
To prejudice underwriters 600
A ttempt, when casting away would be felony 600
Bastard.
Mother, or reputed father, getting possession of, not child
stealing 215
Evidence at trial for murder of 907
Bathing.
In public, an indecent exposure 73
INDEX. 1109
PAGE
Battery 193
(See Assault.)
Bawdy house 70, 72
Beggars.
When loose, idle or disorderly persons, or vagrants 71
Benefit of Clergy.
Abolition of, not to prevent joinder of counts in indictment as
before 712
Remarks on 712
Bench warrants.
Maybe issued 6 79
Besetting house.
Punishment for 628
What is 62S
Bestiality 66, 67
Bigamy.
Punishment or 76
Exceptions — (a) Where second marriage is out of Canada
by person'not a British subject 7 6
(b) Where husband or wife has been absent for seven years
and not known to be living 7'5
(c) Divorce a vinculo matrimonii 76
(rf) Where first marriage has been declared void 76
Necessary proof on trial for 7 J
Offender may be tried where offence is committed, or where
he is apprehended or in custody r.ot)
Bill of exchange.
Bank bill, forging 503
Forged, purchasing, etc, knowing the same to be forged. . . . 505
Forging 512
Drawing, etc, by procuration without authority 521
Forgery of, however designated 531
Bill of lading 278
(See interpretation clause Larceny Act.)
Bird.
Stealing, killing or maiming 293,599
Birth.
Concealment of 221
Verdict of, on indictment for murder 865
Forging register of 527
1110 INDEX.
Bodily harm. page
Causing with intent to murder 147
Attempting the same 152
With intent to maim, etc 1 58
Conviction may be for, on trial for felony 866
Or to resist apprehension or detainer 158
Remarks, maim, disfigure and disable distinguished 161
Inflicting with or without a weapon 163
By administering poison 167
To apprentice or servant whereby life is endangered 168
Causing explosion, etc., with intent to do 174
Placing gunpowder, etc., near building with like intent, etc. 174
Setting spring gun, etc., with intent to cause 176
Doing or causing by furious driving 182
Or by omitting or negligently doing one's duty 183
Assault occasioning actual 184
Body corporate.
Director, etc., of fraudulently appropriating property 412
Or omitting entry in books of receipts of property with intent
to defraud 412
Destroying, etc, of books with like intent 412
Making false statements, or accounts, with intent to deceive
members, etc., of 412
Bond.
Stealing , 278,295
Forging „ 510
Books of account.
Making false entries in, to defraud creditors 638
Boom.
Maliciously cutting adrift 606
Breaking prison 57,61
(See Prison Breach.)
Bribery.
Securing influence for Government contract by 631
Not triable at Quarter Sessions 642
Bridges.
Maliciously injuring 590
Building.
Stealing fixtures in 305
Setting fire to public 566
To any other 567
INDEX. 1111
Building — (Continued,) page
To goods in 568
Attempting same 570
Malicious injuries to, by explosive substances 572
By tenants 574
Sending letter threatening to burn with intent to extort
money 625
Bcoy.
Cutting away with intent to destroy ship 605
Fastening vessel to 606
Bullion.
Produced by lightening gold or silver current coin, punish-
ment for having in possession 541
Burglary.
General remarks on , . . . 334
The time of committing offence 335
The place 336
What is a dwelling house for purpose of 336
The manner 342
The intent 348
Breaking and entering church, etc 349
Building within the curtilage but without communication,
not part of dwelling house 351
Breaking and entering dwelling house 351
In the night, with intent to commit felony therein 356
Building within the curtilage but not part of dwelling house 358
Any house, shop, etc., and committing felony 361
Or committing felony and breaking out 361
Any dwelling house, church, etc., with intent to commit
felony 365
Being found armed or disguised with intent to break and
euter house in the n ight 367
Punishment for second offence 367
Local description necessary in body of indictment 710
Punishment for burglary 353
House-breaking, local description necessary in body of in-
dictment 710
Verdict for breaking and entering with intent, on indictment
for 883
Proof of, no defence on trial for house breaking 883
Burial.
Forging registry of 527
1112 INDEX.
Calendar month. page
Computation of a 1054
Canal.
Malicious injury to works on 588
Capital punishment.
Provisions respecting 1048
Convicted felon to be kept apart 1049
Judgment of death how executed 1050
Carnally knowing.
Female idiot, or imbecile or insane woman 69
Inducing, etc-, girl under sixteen to resort to premises for
purpose of 69
Reasonable belief that girl was over sixteen a defence 69
One uncorroborated witness not sufficient to convict for 69
Defendant competent witness on his own behalf 69
Prosecution to be commenced within a year from commission
of offence 69
Girl under ten years of age 204
Between ten and twelve years of age 205
Under twelve, attempt at 207
Carnal Knowledge.
Remarks on 198
What is sufficient proof of 907
Cards.
Cheating at 442
Case reserved 965
(See crown case reserved).
Cat.
Stealing 293
Maliciously killing, etc 599
Cattle.
In Larceny Act, what expression includes 280
And in Malicious Injuries Act 558
Stealing 291
Maliciously killing or maiming 597
Attempt 597
Sending letter threatening to kill, etc 625
INDEX. 1113
Certificate. pagb
Of clergyman, etc-, wandering about and begging without. 71
Of marriage, forging or uttering 527
To constable of delivery to gaol of person apprehended in
county where offence was not committed 694
Of trial at which perjury was committed, sufficient evidence
of such trial 906
Of previous conviction sufficient in lieu of record 908
Certiorari.
Not required to remove indictment against corporation into
Superior Court to compel defendant to plead 805
Challenges.
Peremptory, by prisoner, extent of 807
Remarks on 807
And by the crown 818
Right to stand aside jurors in case of libel 818
Remarks on challenges by the crown 818
Chance medley.
Definition of 144
Character.
Party on criminal trial discrediting his own witness 913
Cheating,
Punishment for where none is provided by statute 632
At cards 442
Cheque.
Fraudulently altering crossing on 523
Child.
Murder 106
Neglect to provide food or clothing for 168
Umler two years of age, abandoning 172
Stealing 215
Concealing birth of 221
Verdict of, on indictment for murder , 865
Chloroform.
Attempt to administer in order to commit felony 167
Choke.
Attempt to, in order to commit felony 166
Chtrch.
Rioters demolishing 35
Breaking and entering, and committing a felony 349
Or committing a felony and breaking out of 349
With intent to commit a felony 365
1114 INDEX.
Churchyard. page
Stealing fixtures in 305
Injury to statues, etc, in 596
Clergy.
Abolition of benefit of 712
Clergyman.
In discharge of his duties, punishment for unlawfully obstruct-
ing 64
Clerk.
Stealing by 381
Embezzlement 383
In employ of Government of Canada, making out false
dividend warrant 495
Coal.
Setting fire to mine 585
Codicil.
Stealing 302
Forging 511
Coin.
Offences relating to, act respecting 535
Counterfeiting current gold or silver 537
Coloring 539
Lightening 541
Importing and exporting counterfeit 543
Uttering or having with intent to utter 544
Counterfeiting copper coin, or having tools therefor 548
False or counterfeit, tendering, knowing same to be false, etc.. 549
Foreign, counterfeiting , 549
Making, etc., or having possession of tools for coining 551
Conveying tools or metal out of mint, without authority. . . . 555
Suspected of being counterfeit, may be cut 555
Uncurrent copper, manufacture and importation of 556
Counterfeit, destroying in court 893
Piace of trial for uttering in more places than one 663
Search warrant for counterfeit 684
Coloring coin.
Punishment for 539
Combination.
Trade, to raise rate of wages 625
Unlawful assault in pursuance of 625
Preventing exercise of trade by 625
Act done by, no offence unless made punishable by statute.. 629
INDEX. 1115
Committee. page
Of lunatic, neglect to provide food, etc., for 168
Commitment.
By magistrate after preliminary investigation 686,689
Of witness in certain cases 690,894
Common assault.
Punishment for • • • • 184
Commutation of sentence.
Crown may commute sentence of death 1075
Form and effect of commutation 1075
C OMPOCNDING FELONY.
By advertising reward for recovery of stolen property. ..... 459
Concealing.
Birth of child, by secret disposition of dead body 221
May be convicted of, on indictment for murder.... 865
Document of title to land 301
Wills, codicils, etc 302
Confession.
Of treason in open court, conviction by 31
Of person accused, prosecutor may give in evidence 689
Consent.
Incase of assault 68,191,206,207
Conspiracy.
To intimidate parliament 30-31
To murder 141
To obstruct trade 625
Punishment for, where no ne is provided by statute 632
Remarks on 636
Constable.
Arrest by, without warrant 664
Contempt.
Of court, arrest without warrant for , 670
Contract.
Criminal breaches of 629
When breach may endanger life 629
With municipal corporation for supplying gas or water. . . . , 629
With railway company for carying mails 629
By Municipal Corporation for supplying city with gas, etc.. 630
By railway company for carrying mails 630
Malice need not be against a particular individual 630
Corporation, etc., to keep copy of provisions posted up 630
1116 INDEX.
Contract — {Continued.) page
Penalty for neglect 631
With government, frauds with respect to 631
Making gift or offer for influence, respecting 631
Punishment for accepting such gift or ofter 631
Making gift or offer to person tendering for 631
Punishment for making or accepting such gift 631
Public officers receiving gift, etc., for assistance in transacting
business with the government • 632
Offender in these cases to be iucapable of holding 632
Prosecution must be commenced within two years from
commission of offence 632
Contributory negligence.
In manslaughter 129
Conversion.
By agent, etc., to his own use of property entrusted to his
care 407,414
Conviction.
(See Previous Conviction.)
Coroner.
Proceedings on finding of felony on inquisition by 694
Penalty for contravention of provisions 695
Duties of, on execution of felon ..., 1050
Inquisition of, an indictment 640
Corporation.
Municipal, criminal breaches of contract by 630
Must keep provisions relating to, posted up 630
Penalty for nn» ect < , 631
Indictment against, for misdemeanor 805
Proceedings in case of non-appearance 805
Corroboration.
On trial for perjury, remarks on 47
For procuring feigned marriage, of one witness necessary.. . . 75
And also for seduction, etc ,. 69
And in forgery, in certain cases 900
Corrosive fluid.
Throwing at, or applying to, any person 174
Costs.
On criminal information for libel by private prosecutor 228
May be recovered by distress or by action 228
On conviction for assault 956
IXDEX. 1117
COUNSEL. PAGB
Address of, how regulated in criminal trials 835
Remarks on 836
Duties of, at trial 839,842,844
COUNTERFEIT.
(See Coin.
Counterfeiting.
The great seal, privy seal, etc 489
Counts.
May be joined as before abolition of benefit of clergy 712
Court.
Records of, stealing 303
Forging 523
Forging name, etc., of judge or officer of 526
Court martial.
Trial by, for levying war 31, 32
Creditors.
Making false entries in books with intent to defraud 638
Transferring property with like intent 638
Crime,
Infamous 66
(See Abominable Crime.)
Criminal procedure act 640
Crops.
Setting fire to.... 578
Attempt 578
Crown cases reserved.
Question of law may be reserved 965
Case shall be stated for the court of 966
Court shall hear and determine case 966
How judgment shall be certified 966
Judgment to be delivered in opeu court 967
Case may be sent back for amendment 967
Dam.
Malicious injuries to 588
Death.
Court pronouncing sentence of 1048
Judgment of, how executed 1050
1118 INDEX.
Debentures. page
Forging 497
Making mould, etc., used for 497
Or procuring paper 498
Altering, or uttering knowing it to be altered, either within
or without Her Majesty's Dominions 523
Declaration.
Of Quaker, etc., in certain cases 806, 901
Solemn, in lieu of oath.... 2
Defamatory libel.
Punishment for publishing , 225
For maliciously publishing 225
Procedure on trial 225, 227
Defilement.
Of girl between ten and twelve years of age 205
Under ten years 204
Demurrer.
Person prosecuted not entitled to delay for purpose of, as of
right 771
Objection to indictment by 778
Deodand.
Abolished 1068
Deposition.
Person under trial entitled to inspect 853
Person indicted entitled to copy of 853
By sick person, of evidence for criminal trial 901
May be used on trial on certain condition s 902
Directors.
Of company, fraudulently appropriating property 412
Omitting entry in books, of receipt of property with intent
to defraud 412
Destroying, etc., books with like intent 412
Making false statements, or accounts, with intent to deceive
members, etc 412
Disorderly houses.
Keepers or inmates of, are loose, idle and disorderly persons. 72
Dividend warrants.
False, officer or clerk of government making..... 495
Dock yards.
Setting fire to 566
Document.
Forging any 531
INDEX. 1119
Document of title. page
To goods, what is 278
And to lands 278
To lands, stealing, etc : 301
What shall be charged in indictment 727
Dogs.
Stealing 293
Killing or maiming 599
Domestic animals.
Stealing 293
Killing or maiming 599
DorBT.
Charge to Jury as to 850
Drilling.
Unlawful meetings for, prohibited 34
Punishment of instructors at 34
And of persons receiving instruction 34
May be dispersed and persons attending arrested . . 34
Drown.
Attempt to, with intent, etc 152
Drug.
Administering, or procuring to be administered, for purpose
of abortion 218
Duelling.
Seconds in, principals in second degree of crime of murder. 11
Or guilty of murder 12
Remarks on murder by , 113
Dwelling house.
Committing burglary in 351
Entering in the night with intent to commit felony 356
Breaking and entering with intent to commit a felony 365
Beiug armed and disguised with intent to break and enter in
the night 367
The like after a previous conviction 367
Setting fire to, any person being therein 561
Malicious injuries to, by explosion of gunpowder, etc 572
Stealing in, local description necessary in body of indictment 710
Dying declaration 140
1120 INDEX.
Election. page
Doctrine of, as to different charges of larceny 888
Elections.
Stealing documents relating to ,, 403
Or wilfully destroying or damaging same 606
Electric telegraph.
(See Telegraph.) 591
Embezzlement.
Remarks on 384
By clerk or servant 383
Or cashier, etc , of bank 407
Of any property so as to deprive owner of the use of
same 452
Punishment where value of such property is over $200 452
Place of trial for bringing into Canada property embezzled
abroad 659
Remarks on authority of Parliament to pass this section... . 660
Distinct acts of, may be charged in indictment 727
Verdict of larceny on trial for, and vice versd 884
Embracery.
Punishment for 638
Remarks on 639
Engine.
Used in mine, destroying, etc 586
Of railway, obstructing 178, 591
Engraving.
Plates used for bank notes, etc 507
Figure or device on same 507
Plates for foreign notes 508
Error.
Writ of (See Writ of Error) 972
Escapes and rescues.
Act relating to 57
Felonious rescue 57
Escape from penitentiary , 57
From reformatory 58
Escape defined 59
Voluntary and negligent 59
When a felony and when a misdemeanor 60
Rescue defined 62
When a felony and when a misdemeanor 62
Person allowing prisoner to escape not an accessory after the
fact 19
INDEX. 1121
Estreat. page
Of recognizance 1039
Evidence.
Proof required on trial of indictment for taking unlawful oath. 5
For treason 31
For perjury 47
Rioters destroying building 37
Obstructing clergyman in discharge of his duty 65
Enticing girl into house of ill-fame 71
Bigamy 77
Endangering life or health of apprentice, etc., by neglect. . . 169
Setting spring-gun, etc., with intent to do bodily harm 177
Endangering safety of traveller on railway by neglect 179
Assault on peace officer 185
Rape, and assault with intent to commit rape 200
Abduction from motives of lucre, etc 208
Guilty knowledge in uttering forged instrument 481
Destroying building by explosion 573
All evidence material with respect to liability for perjury... 42
Of one witness, not sufficient on trial for unlawful solem-
nization of marriage without corroboration 75
And on trial for seduction and like offences 69
Of defendant on his own behalf, admissible in these cases. 69, 75
Conviction for stealing will, etc., not admissible in civil
action 302
Nor for stealing tree, etc., exceeding $10 in value, knowing
same to be stolen 310
Nor of fraudulent embezzlement by Government officer. . 40 2
On criminal trial in such ca~es evidence given by compul-
sory process in civil suit not admissible 310, 402
Unlawful possession by workman, etc., in mine, of smelted
gold, etc , primd facie evidence that same has been stolen. 314
Tendering in, forged proclamation, etc 525
Not necessary to call officer of mint to prove that coin is
counterfeit 538, 908
On preliminary hearing before justice 689
Of interested person on trial of offence under Forgery Act not
sufficient without corroboration 900
By commission of sick person 901
At trial for murder of bastard 907
Of former conviction of person indicted 909
Of accomplice " 898
Of a prisoner for or against a co-prisoner ( 897
WWW
1122 INDEX.
Exchequer bills. page
Forging 497
Having possession of mould, etc., used for 497
And procuring paper used for without authority 498
Excusable homicide ....Ill, 142
Explosive substance.
Destroying building by, with intent to murder. 152
Causing bodily harm by 174
Causing to explode with intent to cause bodily harm 174
Sending or delivering to any person with like intent 174
And placing or throwing upon building 174
Malicious injuries to building by 572
Placing or throwing on ship with intent to damage 604
Extorting.
By sending threatening letters 613, 625
Extra-judicial oaths.
Act respecting 1
Unlawfully administering 1
Exceptions 1
Solemn declaration in lieu of oath 2
Form of 2
Remarks on th is act 2-5
Factor.
Conversion of money, etc., entrusted to his care 407
Selling without authority valuable security, etc., so entrus-
ted 407
Fraudulently selling property entrusted to him for safe cus-
tody 409
Selling property under power of attorney for his own benefit. 409
Obtaining advances on property of principal without author-
ity 410
False personation.
Of owner of stock 493
False pretences.
Procuring girl under 21 years of age to have illicit inter-
course by 70
Obtaining money by 420
What constitutes offence of 421, 440
Inducing person to execute valuable security by 440
INDEX. 1123
False pretences — (Continued.) page
Pretending to have enclosed money, etc., in letter 440
Form of indictment in such case 728
Winning money at cards, etc., deemed to be an obtaining by 442
Fraudulently obtaining railway, etc. , passage by 443
Obtaining property by, so as to deprive owner of use of same 452
"What shall be charged in indictment 727
No defence on trial for, that facts amount to larceny 885
Verdict of, on trial for larceny 886
False receipts.
Warehouseman, etc., giving for grain 415
False signals.
Exhibiting, with intent to bring ship into danger. 604
Fear.
Death caused from , 137
Fences.
Stealing or destroying ,.. 310
Second offence 310
Punishment for unlawful possession of 310
Malicious injuries to 584
Finding.
Larceny by 265
Fines and forfeitures.
Act respecting 1046
Recovery of penalties when no other mode is prescribed. . . 1046
To belong to the crowu, unless otherwise provided 1046
May be applied otherwise by order in council 1046
Limitation of actions 1047
Fish ponds.
Malicious injuries to 589
Fixtures.
On buildings, stealing 305
Injuries to by tenants 574
Flight.
No inquiry concerning, on trial for treason, etc 864
Forest.
Setting fire to, by negligence 571
Forfeiture.
Of goods and chattels on finding by coroner's jury of verdict
of felo dese 116
Forgery.
Act relating to 488
Of great seal, etc 489
Letters patent and public registers 490
1124 INDEX.
Forgery — {Continued.) page
Transfer of stock, etc ., . 491
Debentures, stock, exchequer bills, etc 497
Stair ps 499
Bank notes 503
Making paper and engraving plate for bank notes, etc. . . . 506
Deeds, wills, bills of exchange, etc 510
Passenger tickets 523
Records, process, instruments of evidence, etc 523
Evidence, etc 523
Notarial acts, registers of deeds, etc 525
Orders of Justice of the Peace 526
Marriage licenses 527
Registers of births, marriages and deaths 527
Demanding property on forged instruments 530
Cases not otherwise provided for 531
General remarks on 463
Definitions 463
Nature of crime 464
At common law 467
May be complete without publication or uttering 477
Uttering 480
Necessary proof on trial 481
Not triable at quarter sessions 486, 642
Place of trial of offender or accessory 657
Intent to defraud in 468, 728
Form of indictment for 749
Forms.
In second schedule remarks on 1026
Fraud.
With respect to government contracts 631
Punishment for, when not specified in act 632
Fraudulent intent.
In forgery, remarks on 500
Fruit.
Stealing 311
Damaging • 583
Furious driving.
Causing bodily harm by 182
Garden.
Stealing fruit in 311
Or destroying plants 853
INDEX. 1125
Gas. page
Criminal breach of contract to supply 629
Stealing of gas 257, 889
Gaspe.
Place of trial for offence committed in 656
Gate.
Stealing 310
Destroying 584
Gaol.
For offence committed in provisional district offender may be
committed to any common gaol in Ontario 655
If in Gaspe, to gaol of county where offence was committed. 656
Girl.
Between twelve and sixteen years of age, seduction of . . . . 68
Procuring illicit intercourse by 69, 70
Between ten and twelve years of age, abusing 205
Under ten years of age 204
Under twelve years, attempt to abuse 207
Under sixteen years, abduction of 212
Glass.
Inxed on house, &c, stealing 305
Grand jcrt.
Swearing witnesses before 832
Name of witness to be indorsed on bill 833
And initialled by foreman 833
Who may be examined before 833
Remarks 834
Evidence of proceedings before 835
Not to ignore bill on ground of insanity 965
Special enactment for Halifax 1025
Grain.
Giving false warehouse receipt for 415
Conspiracy to obstruct sale of 627
Great seal.
Forging 489
Greenhouse.
Stealing plants in 311
Or destroying 583
Goods.
Document of title to 278
In building, setting fire to 568
Guardian.
Punishment for neglect to provide ward with food, etc 168
1126 INDEX.
Gunpowder.
(See Explosive Substance.) page
Habeas corpus.
Prisoner indicted may be brought up for arraignment
without 696
And also witness from penitentiary 895
Habitation.
Form of indictment for offences against . . ^ 1033
Hand writing.
How proved on criminal trial 913
Hard labor.
Provisions as to 1053
High seas.
Place of trial for offence committed on 646
For offence committed on, any justice may issue warrant 678
Proceedings on appearance thereon 688
High treason 30
(See Treason.)
Highway.
Apprehension of person lying or loitering in, in the night ... 665
Indictment for not repairing, local description necessary in
body of 711
Holiday.
Warrant by justice may be issued on 679
Homicide.
Remarks on 86
Excusable, no punishment or forfeiture for 142
Remarks on 111,143
Hop-binds.
Maliciously destroying ". 579
Horse.
Stealing 291
Maliciously killing 597
House
Stealing in 371
With menaces or threats 374
Setting fire to 562
Sending letter threatening to burn 625
(See Building.)
(See Dwelling House.)
INDEX. 1127
HOITSE BREAKING. PAGE
(See Burglary.)
HOUSE OF ILL-FAME.
Enticing girl under 21 year9of age into 70
Keepers or inmates of, are loose, idle or disorderly persons. 72
Warrant to search for disorderly person in 72
Husband.
Punishment for neglecting to provide wife with food, etc. . .. 168
Hypothecation.
Of real property in Quebec, frauds in respect of 461
Ice.
Penalty for leaving holes in navigable water open for pur-
pose of obtaining 182
Idiot.
Punishment for carnally knowing 69
Illicit intercourse.
With girl under sixteen years of age 69
Under twenty-one years 69
Procuring, by false pretences, girl under twenty -one to have,
with man other than procurer TO
Enticing iuto house of ill-fame for purpose of 70
Imparl.
Person prosecuted not entitled to, as of right, delay for pur-
pose of 771
Definition of 773
Special provisions for O ntario 1 024
Impounding documents 893
Imprisonment.
Provisions as to 1052
Inciting.
To commit an indictable offence 861
Indian Graves.
In British Columbia, violating 462
Indecent assault.
Upon a male 67
Upon females 207
Punishment for 207
With intent to commit sodomy 67
Indecent exposure.
Punishment for 71
Remarks on 73
In public place, local description necessary in body of indict-
ment 711
1128 INDEX
Indictment. page
Interpretation of word 640
Against a prisoner 696
Provisions respecting 708
Need not be on parchment 708
Venue need not be stated in body of 708
Cases where local description is still necessary ... 710
Abolition of benefit of clergy not to prevent joinder of
counts as before 712
More than one act of treason may be charged 725
For perjury, what shall be sufficient 725
And for subornation of perjury 726
For murder or manslaughter 726
Stealing, etc, document of title to land 727
Distinct acts of embezzlement may be charged 727
Obtaining property by false pretences, what shall be
sufficient to allege 727
For forgery where it is necessary to allege an intent to
defraud the same 728
And for buying or selling counterfeit coin 729
For offence against malicious injuries Act 730
Cases in which ownership of property need not be alleged. 730
Ownership of partners' property how stated in 731
Partners, joint tenants, etc, how described 731
Property in turnpike road how to be laid 735
And in possession of public officers 735
Property of body corporate 735
For stealing oysters, etc., county or district need not be
named 736
For stealing ores and minerals, property how laid 736
And for stealing stamps 737
For embezzlement by persons in the public service 737
Stealing property let to hire, or fixtures 737
Omission of certain averments, etc., not fatal to indictment 738
Description of bank notes in 747
And of instruments generally 748
Of instrument in indictment for forgery 749
And for unlawful engraving 750
Several accessories may be included in one 750
And three larcenies charged 750
For stealing, may have count for receiving 751
Receiver of stolen goods, how indicted 752
Separate receivers may be included in same 753
INDEX. 1129
Indictment — (Continued.) PAGa
For offence after previous conviction, what shall be alleged 753
Form 760
As to certain offences, preliminary requirements 767
Not abated by reason of dilatory plea, etc 776
Objection to, when and how taken 778
Prisoner entitled to copy of 853
Indorsement.
Forging 517
Infant.
Neglect to provide food, etc., for 168
Infamous crime.
(See Abominable Crime.) 66
Information.
Must be on oath and in writing 680
Included in word " indictment" 640
Insane prisoners.
Jury may be required to find specially 962
Lieutenant-Governor may make orders for safe custody.... 962
Intent to defraud.
False pretences 727
Forgery 728
Mai icious injuries 730
Intimidation.
Preventing person doing anything by 627
Preventing purchase of land at public sale by 629
Joinder.
Of counts as before abolition of benefit of clergy 712
Of offences discussed 715, 948
And of defendants 724
Jeopardy.
Having been in 795, 797
What constitutes 864
Joint tenants.
In mining claims, concealing gold or silver found from
co-tenant , 315
How described in indictment 731
1130 INDEX.
Judge. page
May commit for perjury committed before him 42
Forging name, etc., of. 526
Admission to bail by order of 692
Change of venue by 697
Sentence by, against prisoner tried by another 1051
Charge to the Jury 848
Juror.
Punishment for embracery 638
Jury.
Who are qualified to serve on 805
De medietate linguae, alien not entitled to 806
Quaker summoned make solemn affirmation in lieu of being
sworn 806
Peremptory challenges to, by prisoner 807
And by the crown 818
Standing aside, in case of libel 818
Mixed, in Quebec 823
And in Manitoba 826
Summoning additional jurors when panel exhausted 826
May be allowed to separate in cases less than felony 827
Saving of powers of court over 831
View by, proceedings on 832
(See Grand Jury.)
Jurisdiction.
Of quarter sessions, none in perjury 47
Nor in subornation of perjury 55
And none in treason, capital felony or libel 641
Not to try certain offences under Larceny Act or offences
against the Person Act 646
Remarks on 642
Every superior court of criminal jurisdiction may try any
treason, felony or other indictable offence 641
Justices of the peace, judge of sessions and recorder not to
try certain offences 646
Certain functionaries in Quebec and Montreal to have powers
vested in two justices 646
Justice of the peace.
Unlawfully administering oath, penalty for 1
Forging orders of 526
Cannot try offences under certain sections of Offences against
the Person Act 646
INDEX. 1131
Kidnapping. page
What constitutes 216
Remarks on 217
Land.
Document of title to 278
Stealing, etc 301
"What shall be set out in indictment 727
Land marks.
Maliciously defacing, etc 607
Except by surveyor in certain cases 607
Larceny.
Act respecting 278
By bailee 281
Simple, punishment for 290
Stealing cattle 291
Stealing written instruments 295
Stealing things attached to or growing on land 305
Stealing ores or minerals 312
Stealing from the person 315
Burglary 334
Stealing in the house 371
In manufactories 378
From ships, etc 379
Things under seizure 381
By clerks, or persons in public service 381
By tenants or lodgers 404
By partners 405
Frauds by agents, factors or bankers 407
Obtaining money by false pretences 420
Receiving stolen goods 443
Offences not otherwise provided for 452
General remarks ou 234
Requisites of offence 235
The taking 235
Taking where offender has a bare charge 237
Where possession of goods is obtained animo furandi 240
Where obtained bond fide without any fraudulent intention
in the first instance 248
Where offender has more than a special property in the
goods 250
By finding 265
The carrying away t 255
1132 INDEX.
Larceny — (Continued.) page
The goods taken 258
The owner 260
Against owner's consent 260
Felonious intent , .. 261
Place of trial of persons who have property in one part of
Canada which has been stolen in another 663
Search warrant to search in dwelling house, etc., for stolen
property 682
Laudanum.
Administering with intent to commit felony 167
Law of marriage. (See Marriage.) 75
Lease.
Of mine, attempt by holder of, to defraud Her Majesty, etc. . 314
Legislature.
Publication by authority of, bar to criminal information for
libel 226
Letter.
Demanding money, etc., with menaces, punishment for
sending 613
Threatening to accuse of crime, sending with a view to
extort gain 617
Threatening to kill, etc 625
Or to ourn house, or kill, etc-, cattle 625
Letters patent.
Forging 490
Levying war.
Trial by court martial for 31-32
Punishment 31
Libel.
Act respecting 225
Punishment for publication of 225
Matters of defence 225
Publication by authority of Parliament 226
Procedure on trial for 227
Plea of truth of alleged libellous matter 227
Effect of such plea 227
Jury may give general or special verdict 229
On private prosecution costs may be awarded 228
And may be recovered by distress 228
General remarks on 231
INDEX. 1133
Limitation. page
Of time for prosecution for treason 31
Riotous assembly., etc 33
Unlawful meeting for drill 35
For seduction and like offences 69
Enticing girl iuto house of ill-fame 69
Procuring feigned marriage 75
Unlawfully solemnizing marriage 75
Advertising reward for recovery of stolen property 460
Frauds with respect to government contracts 632
Limitation of time for prosecution, how time computed.... 712
Limitation as to actions for penalties and forfeitures 1047
Lodger.
Stealing property by 404
Local cacsa 269,270,449
Machinery.
Malicious injuries to 575
For agricultural purposes, the like 576
Magistrate.
(See Justice of the Peace)-
Malice.
A necessary element in murder 88
Remarks on 98
And for unlawful wounding 163
Remarks 165
In case of malicious injury to property, against owner not
necessary 611
Against particular person, in case of criminal breach of
contract to supply gas, etc., not necessary 630
Standing mute of, on arraignment 788
When presumed 159, 163, 214, 590, 593, 601, 609
Malicious injuries to property.
Act respecting 558
By fire to buildings and goods therein 558
To dwelling house, some person being therein 561
To house, out-house, etc 562
To railway station 565
To Queen's dock yards, etc 566
To Public buildings 566
Any other building 567
1134 INDEX.
PAGB
Malicious injuries to property — {Continued.)
To goods in building 568
To buildings, attempt 570
To forests, etc., by negligence 571
By explosive substances 572
By tenants, to buildings 574
To manufactures, machinery, etc 575
To corn, trees and vegetable products . . 578
Destroying hop-binds, etc 579
Destroying trees, etc 580,582
Or plants, etc., in garden 583
And not in a garden 584
To fences 584
To mines 585
Drowning mines, etc 586
Destroying, etc., engines in mines 586
To sea and river banks, and to works on rivers, canals, etc. 588
To fish ponds 589
To bridges, etc 590
Destroying turnpike gates, toll-bars, etc 591
Injuries to railways and telegraphs 591
To works of art 596
To cattle 597
Other animals 599
Injuries to ships 600
Placing gunpowder near vessel, with intent, etc 604
False signals, etc 604
Casting away, etc., buoys 605
Injuries to poll books, etc 606
To land marks 607
Injuries not before provided for exceeding twenty dollars. . 607
Malicious injuries not before provided for 609
Other matters 611
Where local description still necessary in body of indictment. 710
Manslaughter.
Remarks on 117
How distinguished from murder 117
Cases of provocation 118
Mutual combat 120
Resistance to officers of justice, etc 121
In prosecution of unlawful act 125
Or lawful act unlawfully performed 126
INDEX. 1135
Manslaughter — (Continued.) page
Killing by correction 127
By negligence 128
Bv medical practitioners or quacks 133
Neglect of natural duties 136
Other cases of manslaughter 137
By leaving opening in ice, or unused mine or quarry, and
person falls in and is killed 1 82
Punishment for : 142
Indictment for, what shall be set out in 726
Max-traps.
Setting, with intent to do bodily harm 176
Manufactory.
Bioters demolishing 35
Setting fire to, with intent to injure or defraud 562
Manufacture.
Stealing goods in process of 578
Persons entrusted with goods for, fraudulently selling, etc.. . 379
Damaging, etc 575
Marriage.
Act respecting offences relating to 75
Solemnizing, etc., without authority 75
Bigamy 76
Forging license : 527
Forging register of 527
Master.
Punishment for neglect to provide food, etc., for apprentice.. 168
Maliciously causing bodily harm to apprentice 168
Medical practitioner.
Killing by 133
Menaces.
Stealing in the house with 374
Sending letter demanding money, etc., with 613
Demanding money, etc., with 614
Immaterial by whom made 622
Mens rea 214
Merchant.
Conversion of money, etc., entrusted to his care 407
Selling without authority valuable security so entrusted 407
Fraudulently selling property entrusted to him for safe
custody 409
Merger 862
1136 INDEX
Metal. page
Fixed to any building, stealing 305
Mill pond.
Destroying dam of 588
Minerals.
Stealing 312
Not when taken for exploring purposes 313
Employee in mine taking with intent to defraud 313
Mines.
Unused, punishment for leaving unguarded 182
The like after previous conviction 183
If person killed, owner of, guilty of manslaughter 183
Lessee of, attempting to defraud Her Majesty or other person
of money payable under lease 314
Concealing, or making false statement as to amount of gold
or silver found in 314
Sale of gold or quartz without authority 134
Purchaser to execute and file instrument stating particulars of
his purchase 314
Unlawful possession by workman in, of smelted gold, etc.,
prima facie evidence that he has stolen same 314
Partner, etc., in claim concealing gold or silver found 314
Malicious injury to 585
Drowning 586
Damaging engines 586
Miscarriage.
Attempt to procure 218
Procuring drugs in order to procure 220
Monument.
Maliciously injuring 596
Motive. (SeeMalice) 140, 160
Municipality.
Embezzlement by employee of 401
Criminal breach of contract by 630
Murder.
Remarks on 86
Definition 87
Malice prepense 88
Of child 106
By poison 107
By killing officers of justice 109, 111
INDEX. 1137
Mcrder — (Continued.) pagb
Killing by officers of justice 117
Duelling 113
Self murder 115
Conspiracy to commit 141
Petit treason to be dealt with as 146
Attempts to commit 147
By poison (47
By destroying building with gunpowder 152
By setting fire to ship, etc 152
By shooting at, etc 152
By any others means 157
Sending letter threatening to 622
Pun ishment of accessory after the fact to 142
Death in one county from stroke received in another 653
What shall be charged in indictment for 726
Navigable waters.
Leaving unguarded openings in, purpose of obtaining ice 182
If person falls in opening and is killed, owner, etc., guilty of
manslaughter , 182
Necessaries.
Neglect to provide for wife or child, apprentice, etc., with . . 168
Negligexce.
Causing death by 128
Neglect of natural duties 136
Wilful, causing bodily harm by 182
Setting fire to forest, etc., by 571
Newspaper.
Advertising reward for stolen property in 468
New trial.
Supreme Court may make order for 979
Not to be granted unless former trial a nullity 979
Except in misdemeanor 979
Remarks 980
Venire de Novo 983
Greaves' MSS. note 991
Night.
What is, under Larceny Act 280
Entering dwelling house in, with intent to commit felony.. . 356
Being armed or disguised with intent to break into house in
the 367
Apprehension of person caught committing act in the 664
Or lying, etc., in yard or highway in the 665
What is, at common law 677
XXX
1138 INDEX.
Notarial acts. page
Forging 525
Oath.
Unlawful, penalty for administering 1
When not unlawful.... 1
Solemn declaration in lien of 2
Remarks on what constitutes perjury in. 42
Objection.
To indictment, when and how taken 778
Obliteration.
Of crossing on cheque 523
Obstructing.
Railway, by placing wood, etc., on track 591
Use or business of railway 592
By wilful omission or neglect 592
Offences against the person 141
(See Person.)
Offences against the law of marriage 75
(See Marriage.)
Offences against public morals 66
(See Public Morals.)
Offences against religion 64
(See Religion).
Officer.
Revenue or peace, in discharge of his duty, punishment for
assaulting 184
Entrusted with writ of execution, misconduct of 638
Orchard.
Stealing fruit from 311
Destroying fruit in 583
Orders.
For payment of money, or delivery of goods forging 517
Signing by procuration without authority 522
Of Justice of the Peace, forging 526
Ore.
Stealing 312
Employee in mine taking with intent to defraud 313
INDEX. 1139
Oysters. page
Stealing from fishery 294
Using dredge in fishery of 294
Dragging with net on fishing ground 294
Fishing for floating fish allowed 294
Pardons 1074
Par ext.
Neglecting to provide for child 168
Parliamext.
Conspiracy to intimidate 30
Authority of, for publication a bar to criminal information
for libel 226
Partxer.
In mining claim, concealing gold or silver found 314
Stealing by 405
Peace 33
Breaches of. (See Riots.)
Pexalties.
Limitation of action for , , , , , 1047
Penitentiary.
Escape or felonious rescue from 57
Keeper, etc., of, negligently allowing escape 58
Unlawfully procuring discharge of prisoner in 58
Punishment for escaping from 58
Perjury.
Act respecting 41
At common law defined 42
Promissory oaths not 43
Nor false swearing 43
Under act of Canada defined 44
Necessary incidents of 44, 45
Indictment for, what should be alleged in 46
Not triable at quarter sessions 47
Necessary proof on trial for 47
Two witnesses not necessary 47
But evidence of one must be corroborated 47
"What is sufficient corroboration 48, 51
Evidence by judge's notes 51
Remarks on section authorizing judge on trial to commit
for 51, 54
1140 INDEX.
Prejury — (Continued.) page
Subornation of 54
Of same nature and subject to same punishment as perjury. 54
At common law 54
Attempt to suborn 55
Record of conviction for, not evidence 55
Several offenders may be joined in indictment for 55
No accomplices in 56
Two charges of, in indictment no ground for quashing 56
Before act respecting extra-judicial oaths, remarks 2
Person, offences against.
Act respecting 141
Homicide 141
Attempts to murder 147
Acts causing grievous bodily harm or dangerous to life.. . 158
Assaults 184
Rape , 197
Abduction 208,211,212
Child stealing 215
Kidnapping 216
Abortion 218
Concealing birth of child 221
General remarks 86
Stealing from the 315
Thing taken must be completely removed 315
Personation.
Of owner of stock 493
Petit larceny.
Abolished 281
Petit treason.
To be dealt with as murder 146
Remarks on 146
Pigeon,
Killing, etc .....294
Pillory.
Punishment of, abolished 1068
Plant.
Stealing, etc 311
The like after previous conviction 311
Used for food, etc, stealing 312
The like after previous conviction 312
In garden, maliciously destroying 583
The like after previous conviction 583
Not in garden, the like 584
INDEX. 1141
Flea. page
Of justification in case of libel 226,227
Form 229
Form of replication 230
To indictment, time may be granted for 771
Dilatory, etc., indictment not to be abated for 776
Remarks 777
Objection to indictment to be taken before 778
Not guilty, effect of 787
May be entered for prisoner 788
Autrefois convict or acquit 791
Remarks 791-802
Greaves' MSS. note 802
Plea of attainder 803
Poison*.
Murder by 107
Remarks 107
Attempt to murder by administering 147
Administering, with intent to cause bodily harm 152
So as to endanger life 167
With intent to injure or annoy 167
To procure abortion 218
Procuring abortion by use of 220
Poll books.
Maliciously destroying, etc 606
Possession*.
"What is, for purposes of Larceny Act 280
Forgery Act, the like 488
And act relating to coin 536
Unlawful, of bullion, etc., punishment for having 541
Of property, no excuse for malicious injury 611
Of stolen goods ". 270, 450,891
Power of attorney.
Agent, etc., selliug property for his own benefit under 409
Previous conviction*.
For leaving unguarded opening in ice, etc., not ground of
relief on second complain t 183
Stealing domestic animals after 294
Stealing trees, etc., after 308
And fences, etc 310
1142 INDEX.
Previous conviction — {Continued.) page
Fruit, etc 311
Or cultivated plants, etc 312
Being found armed, etc., with intent to break and enter
dwelling house, after 367
Uttering counterfeit coin, etc., after . 547
Foreign coin, the like 550
Destroying tree, etc., of the value of twenty-five cents, after. 582
The like after two convictions 582
Plants in garden the same 583
And plants not in garden 584
Injury to fences after 585
Proceedings on previous offence charged 753 , 892
Proof of 908,909
Principal.
In first degree defined 6
And in second degree 7
Second to a duel may be 11, 116
Abettors when indictable as 12
In treason and offences^under felony all are 15
"When all punished alike 28
Prison.
Escape and rescue from 57
(See Penitentiary.)
Prison breach.
Definition of, and remarks 61
Prisoner.
Statement by before magistrate may be given in evidence
when 688, 906
Statement by, to Jury 839
Privy council.
Appeal to, abolished 979
Procedure.
Act respecting 640
Interpretation 640
Jurisdiction 641
Place of commission and trial of offences 646
Apprehension of offenders 664
Enforcing appearance of accused 678
Search warrants and searches 682
Proceedings on appearance 685
Recognizances to prosecute or give evidence 690
INDEX. 1143
Procedure — (Continued.) pagk
Bail ..••• 691
Delivery of accused to prison 692
Proceedings where offender is apprehended in district in which
offence was not committed 693
Duties of coroners and justices 694
Removal of prisoners 695
Change of venue 697
Indictments 708
Preliminary requirements as to certain indictments 767
Pleas 771
Libel 804
Corporations 804
Juries and challenges 805
View 832
Swearing witnesses before Grand Jury 832
Trial 835
Proceedings where previous offence charged 892
Impounding documents 893
Destroying counterfeit coin 893
"Witnesses and evidence 894
Variances — Records 916
Formal defects cured after verdict 945
Costs 956
Restitution of stolen property 957
Insane prisoners 962
Crown cases reserved 965
Writs of error 972
Appeals and new trials 978
Special provisions 1 023
General provisions 1025
Second schedule. Forms of indictment 1031
Third schedule. Form of judgment, court of crown cases
reserved 1036
On trial for perjury, proof of plea in civil suit 56
On trial for enticing girl into house of ill-fame 70
On trial for libel by publishing proceedings of House of As-
sembly 226
In offences against Coin Act, certain variances no ground
for acquittal 535
Proclamation.
Form of, in case of riot 33
Falsely purporting to be printed by Queen's Printer 524
1144 INDEX.
Promissory note. page
Forging.., 512
Property.
Meaning of word in Larceny Act 279
Demanding, on forged instruments 530
Damage to, exceeding $20 — punishment when none specified
in act 607
Any damage to, the like 609
Transfer of, with intent to defraud creditors 638
Prosecution 66
For treason, preliminaries 31
Commencement of, what is. 712
(See Limitation.)
Prostitute.
Loose, idle and disorderly person 72
Provocation.
In manslaughter 118
Public convenience. 66
(See Public Morals.)
Public morals 66
Act respecting 66
Abominable crime .66
Seduction, etc 68
Loose, idle and disorderly persons, or vagrants 71
Public service.
Stealing by persons in 401
Embezzlement 401
Refusal to deliver up money, etc., a fraudulent embezzle-
ment 402
Civil remedy, not affected 402
Punishment.
Only after conviction 1048
Different degrees of, to be in discretion of court ...1048
Offence under two or more acts punishable under either. . . . 1048
Capital, on conviction by verdict or confession 1048
Sentence of death, what 1 048
Provisions respecting 1048
Report to Secretary of State 1049
Prisoner to be kept apart 1049
INDEX. 1145
Punishment — (Continued.) page
Provisions as to execution of 1049
By imprisonment 1052
1 lace and manner of 1052
In reformatories 1054
Whipping 1054
Solitary confinement and pillory abolished 1068
Nodeodand 1068
Attainder 1069
General provisions 1076
PUNISHMENTS, PARDONS, ETC.
An Act respecting 1048
Capital punishment 1048
Imprisonment 1052
Reformatories 1054
Whipping 1054
Sureties for keeping the peace, and fines 1055
Solitary confinement, pillory 1068
Deodand 1068
Attainder 1069
Pardons 1074
Commutation of sentence 1075
Undergoing sentence, equivalent to a pardon 1075
General provisions 1076
QrAKER.
May make solemn affirmation instead of being sworn on jury 806
The like when called as a witness 901
Quarry.
Unused, punishment for leaving unguarded so as to endanger
life 182
The like after previous conviction 183
If person killed owner, etc., guilty of manslaughter 183
Quarter sessions.
Court of, no jurisdiction in perjury 47
Nor in forgery 486
Nor iu treason or felony punishable with death 641
Nor in certain other offences 641
Quebec.
Provisions of Larceny Act specially applicable to 461
Juries and challenges in 823
Qui tarn action in; discontinuance by private prosecutor a
misdemeanor 638
Raft.
Cutting adrift 606
1146 INDEX.
Railway. page
Placing or throwing things on, and other acts with intent
to endanger safety of passengers 177, 178
Throwing missiles at carriage of, with like intent 178
Endangering safety of passengers by neglect of duty 178
Stealing ticket for passage on 305, 435
Fraudulently obtaining passage by 443
Forging passenger tickets 523
Setting fire to station 565
Malicious injuries to 591
Breach of contract to carry mails 630
Rape.
Punishment for 197
Assault with intent to commit 197, 202,203,861
Remarks 198
Evidence on trial 200
Greaves' MSS. note on 1081
Receipt.
False, by warehouseman of goods stored 414
For grain, etc, false statement in 415
Forging 517
Receiving stolen goods.
"Where principal is guilty of felony 443
And of misdemeanor 444
Where original offence punishable on summary conviction.. 444
Trees, etc., knowing them to have been stolen 310
Possession of stolen goods 450, 891
Recognizance.
Act respecting 1037
Render of principal by sureties 1037
Roll to be fined in court 1038
Estreat of 1039
Quebec 1042
By person guilty of perjury at trial 42
Of bail, forging 527
To prosecute or give evidence 690
Records.
Of court, stealing, etc 303
Forging 523
Clerk uttering false copy 524
Form of 940
The like after amendment 918
Cannot be contradicted 977
INDEX. 1147
Reformatory. page
Escape from 58
Assisting at 58
Harboring escaped prisoner 58
Imprisonment in 1054
Register.
Of deed, forging 525
Of birth, etc., forging 527
Making false entry in 528
Religion*.
Act relating to offences against 64
Obstructing clergyman 64
Disturbing Congregation 64
Reprieve 1049,1051
Request.
For payment of money, forging 517
Rescue.
Of prisoner from penitentiary 57
Definition and nature of offence 62
(See Escapes and Rescues).
Reservoir.
Destroying dam of 588
Restitution.
Of stolen property after conviction 957
Writ of 957
As to valuable or negotiable securities 958
Not to apply to certain offenders 958
Remarks 959
Reward.
For recovery of stolen property, corruptly taking 459
Advertising, for return of 460
RINGING THE CHANGE.
Larceny by 244
Ring dropping.
Larceny by 245
Riots.
Act respecting 33
Riotous assembly 33
Unlawful meetings 34
Riotous acts 35
Necessary proof on trial 37
1148 INDEX.
Roads. page
Turnpike, indictment how laid for injury to 734
Robbery.
Punishment for 315
Assault with intent 315
Definition of 318
What constitutes 318
Momentary possession of things stolen sufficient 319
With violence 320
From the person 328
By person armed 331
And wounding 331
Rout.
Definition of 36
Sacrilege.
Breaking into church, etc-, and committing felony, or com-
mitting felony and breaking out 349
Salvation army.
Meetings not illegal 39
Sea-bank.
Malicious injuries to 588
Seal
Forging 489
Search warrant.
To search for girl enticed into house of ill-fame 70
Disorderly house for vagrant 72
For stolen property 682
Mined gold or gold quartz 683
Timber,etc 683
Implements for forging or counterfeiting 683
Seduction.
Of girl under sixteen 69
Under promise of marriage 69
Seizure.
Larceny of things under 253, 381
Assault on officer to recover goods taken under 184
Sentence.
Of death, what 1048
How carried out 1 04 9
By judge who did not try prisoner 1051
Special enactment for Halifax 1025
Separate trials 724
.INDEX. 1149
Servant. page
Stealing by 238,381
Embezzlement by person employed in capacity of 383
Sessions of the peace.
Jurisdiction 641
Severance of defence 724
Sheriff.
Proclamation by, in case of riot 33
To carry out sentence of death 1050
Ship.
Setting fire to, etc., with intent to murder 152
Placing or throwing gunpowder on, with intent to do bodily
injury 1 74
Stealing goods, etc. , from 379
Of Her Majesty, setting fire to 566
Malicious injury to 600
Setting fire to 600
To prejudice underwriters 600
Placing gunpowder near, with intent to destroy 604
Exhibiting false signals in order to damage, etc 604
Cutting away, etc., buoys 605
Fastening, to buoys 606
Preventing work on, by violence 627
Shooting.
With intent to murder 152
Or to maim, etc 158
Shop.
Breaking and entering 361
Signal.
Railway, removing for purpose of obstruction 592
False, exhibiting^ to bring ship into danger 604
Similiter.
Judgment not to be stayed for want of 946
Society.
Unincorporated, officer or member appropriating property of. 412
Sodomy 66
(See Abominable Crime.)
Soliciting.
To murder 141
Solitary confinement.
Punishment of, abolished 1068
Sovereign.
Treasonable offences against 30
1150 INDEX.
Spring-gun. page
Setting with intent to do bodily harm 1 76
Stable.
Setting fire to 562
Stack.
Of corn, etc., setting fire to 579
Stamp.
Included in word " property " in Larceny Act 279
Forging 499
Statement.
Of accused before magistrate 688
May be given in evidence at trial 906
By prisoner to Jury 839
Statute.
25 Ed. Ill, c. 2, not affected by Treason Act 32
Wilful violation of 632
When not made offence 632
And when made offence 632
Stealing.
See Larceny, cattle, and other objects of theft.
From the person 328
Steamboat.
Stealing ticket for passage on 305
Stock.
Forging transfer of 491
Personating owner of 493
Forging attestation to power of attorney for 494
Falsifying accounts of, in Government books, etc 494
Makiug false dividend warrants 495
Stolen goods 443
Receiving. (See Receiving Stolen Goods.)
Strangle.
Attempt to, with intent to commit felony 152
Subornation of perjury.
Punishment for 41
Remarks 54
Subsequent offence.
Procedure on 753,892
Suffocate.
Attempt to, with intent to commit felony. 152
INDEX. 1151
SUICIDE. PAGE
Aiding commission of 9
Two persons encouraging each other to commit 9, 116
Remarks 115
Attempt to commit a misdeameanor 116
Summons.
For appearance of defendant 678
Sunday.
Warrant may be issued on 679
Superior court
Jurisdiction of, over any criminal case . . 641
Supreme Court.
Appeals to 979
Sureties.
For keeping the peace 1055
Surveyor.
Destroying land marks of 607
Telegraph.
Malicious injuries to 591
Cutting, etc . , machinery 592
Obstructing working of. 592
Attempt 593
Telephone.
Provisions as to telegraphs apply to 593
Tenant.
Stealing by 404
Malicious injuries to building by 574
Tenant in common.
Of mining claim, concealing from co-tenant gold or silver
found in claim 314
Testamentary instrument.
Meaning of expression in Larceny Act 280
Stealing, etc 302
Criminal proceeding not to prevent civil remedy 302
Forging 511
However designated 531
Threats.
Act respecting 613
Sending threatening letters 613
Trade combinations 625
Stealing in house with 347
1152 INDEX.
Threshing machine. page
Destroying 576
Tickets.
Of railway, etc., forging 523
Or stealing 305
Timber.
Making false statement in receipt, etc., for. .^ 415
Unlawful possession of 457,908
Defacing owner's mark 457
Setting fire to 571
Suspected of being stolen, search for 683
Time.
For prosecution, how computed 712
(See Limitation.)
Title.
To goods, document of 278
And to lands 278
Document of, to lands stealing, etc 301
Toll bars.
Destroying , 591
Toll house.
Destroying 591
Trade.
Combination to obstruct 625
Preventing exercise of, by violence 627
Combination, act in pursuance of no offence unless punishable
by statute 629
Treason.
Act respecting 30
Offences against the crown 30
Procedure 31
Foreign aggression 31
Abettors in, indictable as principals in first degree 12
Jurisdiction of courts over 641
Severals acts of, may be charged in indictment 725
Proceedings on indictment and trial 864
Trees.
In park, etc., of value of $5, stealing 307
Or growing elsewhere of value of $25 307
INDEX. 1153
Trees — {Continued.) page
Of value of 25c at least, stealing, etc 308
The like after previous conviction 308
After two convictions 308
Receiving or purchasing, knowing same to have been stolen- 310
Civil remedy not affected 310
Punishment for unlawful possession of 310
Setting fire to, by negligence 571
To plantation of 578
Of the value of $5, maliciously destroying 580
Of value of $20, the like ". 580
And of value of 25c 582
Punishment for injury to, when none provided by act 609
Trial.
Prisoner to make full defence 835
Address of counsel 835
Depositions may be inspected 853
Prisoner entitled to copy of deposition and indictment 853
Person indicted for misdemeanor, and found guilty of felony,
not to be acquitted 862
No liability for attempt after trial for commission of offence. 863
For treason felony, where facts proved amount to treason... 864
For treason, no inquiry concerning lands or flight 864
For murder of child, conviction may be for concealing birth. 865
Felony, conviction for bodily harm 866
Felony by poison conviction for misdemeanor 868
Felony including assault 868
Robbery, verdict of assault with intent 882
Burglary, conviction for house-breaking 883
House-breaking, proof of burglary no defence 883
Embezzlement, verdict of larceny and vice versa 884
False pretences, when facts amount to larceny 885
Frauds by agents the like 886
Larceny, verdict of false pretences 886
When indictment for stealing contains count for receiving. .. 886
Larceny, verdict of fraudulent appropriation 888
Several acts of larceny proved, crown not required to elect.. 888
Evidence of possession of other stolen goods on trial for
receiving 891
Evidence of previous conviction in such case 892
Verdict for injuring buildings by rioters on trial for demolish-
ing 37
Proceedings when previous offence charged 892
Place of— See Venue.
Y Y Y
1154 INDEX.
Trustee. page
Meaning of word in Larceny Act 278
Fraudulently disposing of property 411
No prosecution of, without consent of attorney general of
province 411
Turnpike gate.
Destroying 591
Undertaking.
For payment of money, forging 517
Underwriters.
Setting fire, etc., to ship with intent to prejudice 600
United kingdom.
No appeal in criminal case to any court of 979
Unlawful assembly.
Proclamation to disperse 33
Punishment for not obeying 33
Arrest of offenders 34
For purposes of drill, prohibited 34
Riot, rout and affray defined 36
To witness prize fight 38
Other cases 39
Uttering.
Forged note 480, 508
Counterfeit coin, etc 542, 544, 549
(See Forgery.)
(See Coin.)
Vagrant.
Who shall be deemed a 71-72
Punishment of 72
Warrant to search disorderly house for 72
May be committed to house of industry, etc 73
Valuable security.
Meaning of expression in Larceny Act 279
Stealing, etc , . . . 295
From the person 315
In the house 371
With menaces or threats 374
Clerk or servant stealing 381
Or embezzling 383
Stealing by person in the public service 401
Inducing person to execute, by fraud 440
INDEX. 1155
Variance, page
Between indictment and evidence 916, 917
In names, etc., and other matters not material, etc 917
Proceedings after amendment 918
Vegetable products.
Stealing, etc 311
The like after previous conviction 311
Setting fire to 578
Vevire de novo 983, 991
Venue.
In case of offence within jurisdiction of Admiralty of England 646
Death in Canada of stroke received abroad, and vice versa... 646
Offences on confines of districts 652
On person or property in transit 653
On highways, rivers, etc 653
After dissolution of counties 654
In provisional districts, etc 655
In Gaspe , 656
Perjury, bigamy, etc 656
Accessories 657
Forgery and accessories in forgery 657
In kidnapping 658
Receiving stolen goods 658
Bringing stolen property into Canada 659
Having property in one part of Canada stolen in another 662
Uttering counterfeit coin 663
Change of 697
Transmission of record, etc 697
Verdict.
Formal defects cured after 945
(See Trial.)
Viaduct.
Destroying 590
War.
Levying, against Her Majesty is treason 30
Levied in Canada by foreigners, offender lobe tried by court
martial 31
By a British subject in company with foreigners, the like. .. 32
Warehouse.
Stealing from 361
Setting fire to 562
Kioters demolishing 35
Injuring 35
1156 INDEX.
Warrant. page
In case of treason, when issued 31
Arrest without, in certain cases 664
For appearance of accused 678
May be issued on Sunday 679
For disobedience of summons 680
Requisites of 681
Execution of • 681
Backing 682
For appearance of witness 686
Warrant for payment of money.
What is, in Larceny Act 278
Forging 517,521
Weapon.
Inflicting injuries with or without 163
Committing offence with 331,367
Wharf.
Stealing goods, etc., from 379
Whipping.
For attempt to choke, etc., witli intent to do bodily barm. . . 166
For administering chloroform with like intent 167
For indecent assault, etc 207
Punishment by, manner of 1054
Wife.
Neglect to provide food, etc., for 168
May be a witness on prosecution of husband for 169
Witness in other cases , 899
Will.
Stealing, etc 302
Forging 511
However designated 531
Witness.
Enforcing attendance of, at trial 894
In Canada, but without jurisdiction of court 894
Confined in penitentiary 895
No incapacity from crime or interest 896
In assault, defendant and wife competent ... 899
In other cases not 899
Quaker, etc., may make affirmation 901
Deposition of sick person 901
Use of deposition at trial 902
INDEX. 1157
"Witness — {Continued.) page
Proof of previous conviction of, may be given 909
Discrediting 913
Contradictory statements by 914,915
One not sufficient, in case of seduction, etc 69
Nor procuring feigned marriage 75
Wife may be, on prosecution of husband for neglect 169
Also person charged 169
When prisoner may be, for or against his co-prisoner 897
Woman.
Procuring abortion of .... 218
Forcible abduction of, with intent to marry 211
Concealing birth of child 221
Wood.
Settingfireto 578
Stack of, setting fire to 578
"Woolen goods.
Stealing 378
Destroying 575
Wounding.
"What constitutes a 150
With intent to murder " 147
Or to maim, etc 158
With or without a weapon 163
And robbing 331
Writ.
Of election, stealing, etc 403
Of execution, misconduct of officer intrusted with 638
Writ of error.
How tested and returnable 972
On what founded 972
Issued on fiat of Attorney General 974
Proceedings in court of error 973
Remarks 973
Writing.
Meaning of expression in Larceny Act 280
Fraudulent alteration of, to be forgery 488,803
Yarn.
Cotton, stealing, etc 378
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